Lipman Properties Pty Ltd v Warringah Council

Lipman Properties Pty Ltd v Warringah Council - [2010] NSWLEC 1310 - NSWLEC 2010 case summary — Zoe

[10]

JUDGMENT 1 The applicant in these proceedings is seeking consent for a seniors living development on land at Beacon Hill in the local government area of Warringah. The site is about 2.6 hectares, known as No 8 Lady Penrhyn Drive and No 70 Willandra Road. The aerial photographs at figures 1 and 2 show the site in its broader and narrower contexts of adjoining residential subdivisions and the bushland of the Oxford Falls Valley Locality. 2 Appeal No. 10973 of 2009 is in respect of the proposed development for 32 self-contained dwellings in groups of 4 dwellings. Associated facilities include an amenities building containing a meeting room, gym, swimming pool and recreation facilities; car parking for residents and visitors; landscape and bushfire hazard management works. The application also proposes that the land be subdivided into two Torrens title lots with the smaller lot of 2064 sq m for the existing dwelling that is to remain on the site. The larger lot of some 22,000 sq m is proposed to accommodate the housing for older people and this is proposed as a under strata title scheme. Figure 3 shows the site development plan. 3 The associated appeal of 10974 2009 is for the development application to construct a vehicular driveway and pedestrian access path on an unmade road to provide access from Lady Penrhyn Drive. THE SITE AND ENVIRONS 4 The subject site is an irregular triangular shape surrounded on two sides by streets and road reservations. The site for the proposed buildings is Lot 806 in DP 752038 and the unformed public road to provide access is Lot 12, DP 729342. 5 The adjoining residential subdivision and Council owned reserve at Red Hill is to the west and the residential areas of Beacon Hill are to the south and east. To the north the long boundary of the site adjoins undeveloped bushland. The National Parks are approximately 3 km north and southwest of the site. 6 Currently there is a brick and tile dwelling on the northwest portion of the land with access from Lady Penrhyn Drive. The existing dwelling is sited on the high portion of the land and the topography drops sharply away to a leveled area that has been cleared of vegetation and used for earth supplies. A large part of the land contains native vegetation and rock outcrops. 7 The site slopes from west to east and incorporates a number of naturally formed sandstone terraces at intervals across the site and native trees are interspersed amongst native heath. The general area has varied topography from gently sloping to relatively steep with escarpments and ridges and that part of the site proposed for the seniors living is significantly below the existing dwelling house and is more gently sloping and below the ridgeline.

[11]

THE PROPOSAL 8 The proposed development is described in more detail in the Statement of Facts as follows: + 32 self contained dwellings for use as 'Housing for Older People Or People With A Disability', provided in a cluster of 8 detached buildings, each comprising four dwellings of 2 - 3 bedrooms (category 2 development) pursuant to the Warringah Local Environment Plan 2000 ("WLEP 2000"); + A common amenities building comprising a multi purpose meeting room, gym, toilets, kitchen swimming pool and deck area; + Car parking comprising 56 resident spaces (a mix of I and 2 parking spaces per dwelling) and 10 visitor spaces; + Landscape and bushfire hazard management works; + Pedestrian access ramp from proposed units to Lady Penrhyn / Willandra Road intersection over Council's unformed road reserve, and + New vehicle access internal road connecting Willandra Road and lady Penrhyn Drive. + Retention of the existing dwelling and 4 associated car parking spaces; + Torrens title subdivision of the site into two allotments and a strata subdivision of the larger lot are also proposed. Background 9 The Warringah Development Assessment Panel deferred the application pending receipt of additional information including a Species Impact Statement. In September 2009 the Council forwarded a letter to the applicant advising of a number of concerns associated with the proposal and additional information sought included: * Species Impact Statement (Section 5A and Section 79B of the Environmental Planning & Assessment Act 1979) * An ecological site management plan be prepared and submitted. * An analysis of how the proposed development will affect local core habitats and specifically addressing the issues related to the loss of connectivity between these habitats should be incorporated into the environmental assessment. * Vehicular Access * Car Parking access ramps cross grades * Wheelchair Access To Community Building * Wheelchair Access On Access Pathway to Willandra Road * Pathway over Council land (Owners Consent) * Site Elevations * Clause 59 / Schedule 11 of Warringah LEP 2000 (Koala Habitat protection) * Site Capability Certificate for Seniors Development * House Density - Concurrence Required 10 The applicant submitted a Species Impact Statement (SIS) in December 2009 and other information, however, the application remains undetermined by the council and these proceedings are on the basis of a deemed refusal. The applicant appeals under the provisions of s 97 of the Environmental Planning and Assessment Act (EPA Act). 11 The development is for integrated development requiring referral to the NSW Rural Fire Service pursuant to s91 of the EPA Act. In February 2010, the RFS issued its General Terms of Approval, requiring the imposition of certain conditions. STATUTORY PLANNING FRAMEWORK Warringah Local Environment Plan 2000 (WLEP 2000) 12 The development application was lodged as a Seniors Living development under the provisions of Warringah LEP 2000 and does not rely on the State Environmental Planning Policy 'Housing for seniors or People with a Disability'. 13 The site is located in the B2 Oxford Falls Valley Locality (B2 Locality) under the WLEP 2000. The relevant provisions of this LEP include Clause 12(3)(b)--Desired Future Character (DFC) and for the B2 Locality this is described as follows: "The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows. Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridge tops or in places that will disrupt the skyline when viewed from Narrabeen lagoon and the Wakehurst Parkway. The natural landscape including landforms and vegetation will be protected and, where possible, enhanced Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged. A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape. Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its Catchment and will ensure that ecological values of natural watercourses are maintained. " 14 The proposed development falls under the definition in the dictionary of the LEP (C1.6 of WLEP 2000) as 'housing for older people or people with disabilities' and this means: ' ... residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with disabilities, whether or not it is also used to accommodate people who live with older people or people with disabilities, or staff who are employed to assist in the administration of and provision of services to such housing. Housing for older people or people with disabilities may consist of a residential care facility, a hostel or a grouping of 2 or more self-contained dwellings, or a combination of these, but does not include a hospital or a group home.' 15 Under the B2 Locality Statement 'housing for older people or people with disabilities' and 'housing' are identified as a Category 2 development. 'Subdivision' is also identified as Category 2 development (Clause 14). 16 Clause 12(2)(b) requires the consent authority before granting consent must be satisfied that the development will comply with the development standards set out in the Locality Statement. Clause 12(3)(b) requires the consent authority to be satisfied the development is consistent with the desired future character described in the relevant Locality Statement but nothing in the description creates a prohibition on the carrying out of development. 17 Appendix B to the LEP contains the Locality Statement for the B2 Oxford Falls Locality. In this section of the LEP Housing density is under Built Form Controls and the maximum housing density is 1 dwelling per 20 ha of site area, except : (a) where this standard would prevent the erection of one dwelling on an existing parcel of land, being adjacent or adjoining land held in the same ownership on 8 March 1974 and having a combined area of not less than 2 ha, and (b)……… (c) on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of "housing for older people or people with a disability" and the development complies with the minimum standards set out in clause 29. However, consent may be granted for development that will contravene these housing density standards but, if by more than 10 per cent, only with the concurrence of the Director. The matters which shall be taken into consideration in deciding whether concurrence should be granted are: (a) whether non-compliance with the development standard in issue raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by this plan. To measure housing density: * the site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent) is divided by the number of dwellings proposed on the site, including any existing dwellings which are to be retained, * the site is the allotment which existed on the day this plan came into effect, and * granny flats are not considered to be a dwelling and are limited to one per allotment. 18 In the B2 locality there are a number of other provisions in the LEP as follows: o Building Height "Buildings are not to exceed 8.5 metres in height where height is the distance measured vertically between the topmost point of the building (not being a vent or chimney or the like) and the natural ground level below. Buildings are not to exceed 7.2 metres from natural ground level to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas located wholly within a roof space), but this standard may be relaxed on sites with slopes greater than 20 per cent within the building platform (measured the base of the walls of the building), provided the building does not exceed the 8.5 metre height standard, is designed and located to minimise the bulk of the building and has minimal visual impact when viewed from the down slope sides of the land. " o Front building setback The minimum front building setback to all roads is 20 metres. The minimum front building setback area is to be densely landscaped using locally occurring species of canopy trees and shrubs and be free of any structures, car parking or site facilities other than driveways, letterboxes and fences. o Rear and side building setback The minimum rear and side building setback 10 metres. The rear and side setback areas are to be landscaped and free of any structures, car parking or site facilities other than driveways and fences. " of land that can be included as landscaped open space is 1 metre. "

[14]

Wheelchair access: Development for the purpose of housing for older people or people with disabilities must comply with the following access standards: (a) site gradient: (i) if the whole of the site has a gradient of less than 1:10, 100% of the hostel or residential care facility beds and 100% of the dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents, or (ii) if the whole of the site does not have a gradient of less than 1:10, a percentage (which is not less than the proportion of the site that has a gradient of less than 1:10, or 50%, whichever is the greater, and which in this subparagraph is called the specified minimum percentage) of any hostel or residential care facility beds and the specified minimum percentage of any dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents, and (b) road access: at least 10% … of any dwellings which meet the requirements of paragraph (a) must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road, and (c) common areas: access must be provided so that a person using a wheelchair can use common areas and common facilities associated with the development, and (d) adaptability: … 10% - of any dwellings which meet the requirements of paragraph (a) must also have, or be capable of being modified so that they have, wheelchair access by continuous path of travel (within the meaning of AS 1428) to all essential areas and facilities inside the hostel, residential care facility or dwellings, including a toilet, bathroom, bedroom and a living area. 24 Other principles and standards are contained in Schedule 16 to the LEP. These are not in issue and the proposal satisfies these detail design requirements. 25 Clause 56 refers to retaining unique environmental features on sites: Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land.

[92]

90 Mr Cady states that the site does not include the ridge top or watercourse elements emphasised in the DFC and that the site comprises 3 main terrace areas sloping from west to east that these levels are defined by an upper escarpment running north to south along the eastern curtilage of existing dwelling in the central band of prominent rock outcrops through the middle of the site north to south. He refers to the rock outcrops as having collective significance by way of their contribution of similar rock outcrop throughout the locality and that the development will not significantly change the present landform character of the B2 locality, because no ecologically important landform features on the site warrant in-situ conservation and that while some rock outcrops will be altered the majority of prominent outcrops are retained and the site will remain characterised by these in a manner consistent with other mid-slope locations throughout the B2 locality. He states that to minimise disturbance to the landform, the development is broken down into 9 separate buildings with each building having a small footprint that sits lightly on the landscape reflecting the level of the land upon which it is sited and with the buildings grouped within the benched or sloped parts of the site this preserves most significant rock outcrops and the escarpment. 91 Mr Cady states the above approach reduces the amount of required cut and fill and alteration to the existing contours. He comments that while the total excavation is 11,000 cubic metres some 6000 cubic metres is below building footprints with a total fill of 1000 cubic metres. This will allow the provision of basement parking rather than significant surface parking required for many developments. Figure 4 shows the proposed cut and fill. 92 Mr Cady states that the development will not have a significant impact upon the present landform character of the B2 locality as the site does not contain important environmental features that characterise the locality. The rock outcrops and overall landform that defines the landform character are not significantly altered. He notes that the plans show the individual buildings have small footprints and reflect the level of the ground on which they sit, buildings have been grouped to avoid the prominent escarpment and the band of rock outcrops that characterise the landform at the site. 93 Mr Cole considers the development will change the character of the B2 locality and result in a development not envisaged at the time the LEP was gazetted. He further considers that it is incremental urbanisation of the nonurban locality that the proposal would result in an overdevelopment of environmentally constrained land and the proposal would be inconsistent with the draft LEP provisions of the zoning of the land to E3 Environmental Management.

[94]

95 Mr Cole is of the opinion that compliance with the landscape open space provision is only one element of the LEP and does not guarantee consistency with the DFC. He refers to the number of trees to be removed for both the buildings and the APZ. 96 Figure 5 shows the number of trees to be removed as 147 and there are replacement plantings of 100 with 94 trees retained For the Council Mr Powe agreed that the concept landscaped plan is satisfactory, however, he has a fundamental concern with the fit of the proposed development. On the question of enhancement to vegetation on the site I am satisfied this is achieved by the proposal with the revegetation of degraded areas and the landscape regime proposed. In my assessment the landscape outcome will provide an appropriate fit with the adjoining area, in particular the B2 locality. 97 Mr Cady says that the proposed landscaped area of over 16,000 sq m and over 60% of the site complies with the 1120 sq m of landscaped area (35 sq m per dwelling) standard contained in cl 29(2)(c) and the 30% landscaped open space requirement contained in the B2 locality statement. Some 23% of the site will comprise buildings and roads and he acknowledges that apart from the retained rock outcrops and significant trees to be protected during excavation and construction that the spaces between the proposed building and roads will inevitably be disturbed during the construction process. However, he states that prior to commencement of building works topsoil and plant material from these parts of the site will be transferred for storage and propagation of site. This material will then be used on site in areas of crushed sandstone and revegetated from seed stock sourced from the site. Mr Cady is of the opinion that the proposed changes to existing vegetation will have negligible impact upon the bushland appearance of the site from surrounding properties and will therefore have negligible impact upon the bushland character of the B2 locality. 98 In my assessment of the DFC I am persuaded by Mr Cady's evidence that the proposal is consistent with the B2 locality and it will sit comfortably within this locality and positively contribute to and be consistent with the DFC. The proposal in my assessment conforms to a low intensity and low impact form of development and provides a suitable and consistent outcome for the B2 loacilty. Environmental Impact 99 The respondent contends that the site is environmentally significant and the proposed development will require modification to 90% of the site.

[123]

130 From a strategic planning point of view the proposed development in my assessment will not only provide an appropriate transition from the conventional residential subdivisions surrounding the site to the east, south and west but it will also provide for conservation management and asset protection management for bushfires to be contained on site, whilst also maintaining appropriate connectivity between existing open space bushland areas, I accept the fact that the site, as identified in the SIS, has limitations in this functional sense because of the surrounding development, road network and topography. 131 The information available to the Court allows me to undertake a comprehensive assessment of the site in the context of its juxtaposition with adjoining lands and the constraints and opportunities provided by the site. In my assessment I must have regard to whether the proposed development is consistent and compatible with current and future planning for the area. From a strategic planning point of view it is important that I also assess the development application in the context of the broader area and I am satisfied the proposal before the Court is an appropriate development. 132 Furthermore, I am satisfied that the development of this site given its relationship with surrounding lands, could not be seen as a precedent for the B2 locality generally. The proposed development, even if the land is zoned E3, will not be an aberration and will also be consistent with the character of the B2 area that includes retirement villages and institutions on larger sites. In my assessment the proposed development will not only be compatible, that is coexist harmoniously with surrounding development, but will be consistent and adhere to the same principles of the desired future character of the area. In many respects the subject site is unique and properly calls for a comprehensive assessment not only in terms of the threatened species but the broader strategic approach that this site warrants. 133 The question of whether this site is deferred or zoned E3 I am satisfied in my assessment the proposal is consistent with the current B2 locality and compatible with the objectives of the E3 zone quoted above.

[131]

The respondent contends that the proposed development should be refused for the following reasons: 1. Desired Future Character The proposed development is not consistent with the B2 Oxford Falls Valley Locality Desired Future Character statement contained in WLEP 2000 for the following reasons: Particulars (a) The proposal seeks consent for category 2 development as set out in the B2 Oxford Falls Valley Locality Statement (and Clause 14(1) and (2) (b) Clause 12 (3)(b) of WLEP 2000 requires that before granting consent to development classified as category 2 development, "the consent authority must be satisfied that the development is consistent with the desired future character statement described in the relevant Locality Statement" (c) The proposed housing, housing for older people or people with disabilities and subdivision is not consistent with the desired future character statement for the B2 locality as: i) It will change the present character of the locality ii) It does not conform with the housing density standards set out in the Locality Statement iii) It is not a low impact or low intensity use iv) It does not protect or enhance the natural landscape (including landforms and vegetation) as the proposal will result in the removal and modification (through excavation, fill, construction, under-scrubbing and tree removal) of the whole of the development site as a result of the access road I driveways, 32 dwellings, footpath areas, platforms throughout the development, the proposed swimming pool and provision of asset protection zones. v) The proposed buildings and associated works including access roads and services have not been grouped in areas that will minimise disturbance of vegetation and landforms. vi) Insufficient information has been provided in terms of both stormwater modeling and Waterway Impact to fully assess the impact upon natural watercourses to ensure that ecological values of natural watercourses are maintained. 2. Housing Density a. The proposed development does not comply with the housing density standard set out in the B2 locality Statement (clause 12(2)(b) and clause 12(3)(b) (DFC). Particulars i) The housing density standard in the B2 locality is 1 dwelling per 20 hectares of site area. ii) The land to which the application relates and the site for the standard is the whole of lot Lot 806 in OP 752038 which has a site area of 26,250 square metres. iii) The application seeks consent for housing for older people or people with a disability (32 dwellings), the retention of the existing housing (1 dwelling) and subdivision of lot 806 to create a lot for the existing housing iv) Housing density is measured by dividing the site area by the number of dwellings proposed on the site including the existing dwelling to be retained giving a housing density of 1 dwelling per 795.45 square metres of the site area. v) The proposed development does not fall within the exception set out in paragraph (c) of the housing density standard as the development is not for the purpose only of housing for older people or people with a disability b. Consent cannot be granted under clause 20 notwithstanding the non· compliance with the housing density standard as the development is not consistent with the general principles of development control and the DFC. c. The development contravenes the housing density standard by more than 10% and the Director General has not given concurrence to the contravention of the housing density standard. d. Having regard to the significance of the matter for regional environmental planning and/or the public benefit of maintaining the planning controls under WLEP 2000, consent ought not be granted.

[132]

Threatened Species The applicant's conclusion in the Species Impact Statement prepared by Travers Bushfire and Ecology dated December 2009" that the proposed development at Lot 806 DP 752038, 70 Willandra Road, Beacon Hill, will not result in a significant impact on any threatened species, populations or endangered ecological communities or their habitats' should not be accepted. Particulars: Flora i. The proposed development is likely to have a significant impact on a local population of Pimelea curviflora var. curviflora listed as vulnerable under both the Threatened Species Conservation Act 1995 (NSW) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth). ii. The proposed development is likely to result in the loss or modification of potential habitat for an additional nine threatened flora and at least ten species of regional and local significance, iii. Survey for threatened flora species, as reported in the SIS, is inadequate in respect of survey effort, techniques and outcomes. iv. The assessment of significance does not consider all relevant direct and indirect impacts, particularly in relation to loss of connectivity and edge effects on lands adjoining the site, and potential changes to present hydrology. v. The assessment of significance does not consider the cumulative impacts of development within the Oxford Falls Valley on water catchment values, biodiversity and rare or threatened species from a regional and local perspective vi. The proposed ameliorative measures fail to effectively reduce impacts on biodiversity and threatened species. Fauna - experts agree no longer an issue.
Environmental Impact (a) Extent of modification i. The proposed development will have an unacceptable environmental impact as it will result in the removal and modification (through excavation, fill. construction, under-scrubbing and tree removal) of the whole of the development site as a result of the access road / driveways, 32 dwellings, footpath areas, platforms throughout the development the proposed swimming pool and asset protection zones. ii. The proposed development will have an unacceptable impact on adjoining land through loss of connectivity, loss of potential pollinators. edge effects and potential changes in hydrology and water availability. iii. The proposed development is inappropriate for an ecologically sensitive site and comprises an overdevelopment, largely due to the extent of site disturbance and required fire protection measures, No measures to provide for in-situ conservation are included (b) Environmental significance of the site The extent of the modification is unacceptable because: i. The site hosts significant habitat values. including rocky outcrops. dead wood, remnant bushland and natural watercourses ii. The site is situated in an area of contiguous regional core habitat (as defined by Smith and Smith 2009 Draft Revised Corridors Report) and at the intersection of local and regional wildlife corridors, upstream and downstream along South Creek iii The existing bushland within the locality is in mixed tenure; including private ownership, crown land. Council Reserve and National Park. As such, the security of this bushland cannot be assured. iv. The site contains vegetation of particular conservation significance in relation to biodiversity, habitat for rare and threatened species and protection of water catchments and v. The site lies on the boundary of a Priority Two and Three Wildlife Corridor as defined by Smith and Smith 2005. (c) Asset Protection Zones and Environmental Impact The extent of the site modification is unacceptable because the site hosts significant habitat values, including rocky outcrops, dead wood, remnant bushland and natural watercourses which when required to comply with the requirements stipulated within the NSW Rural Fire Service 5100B (Rural Fires Act 1997) Bushfire Safety Authority dated 4 February 2010 through under-scrubbing and tree removal which would result in large scale clearing of the site to prevent tree canopies and ground cover from being continuous as detailed within Planning for Bushfire Protection 2006. (d) Relevant planning controls i. Clause 12(1) of the WLEP 2000 states that a consent authority must be satisfied that a development is consistent with any relevant general principles of development control set out in part 4 of the WLEP 2000. ii. The proposal is not consistent with the following general principles demonstrating an unacceptable environmental impact: (a) Clause 56 Retaining distinctive environmental features on sites requires that the "Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land. In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses. " The natural landscape of the site is distinctive with significant environmental features such as rock outcrops, a natural watercourse and remnant bushland which are not retained or complemented by the development. This is the result of the proposed building footprint and, associated works including provision of the asset protection zones required for bushfire protection (b) Clause 57 Development on sloping land requires that "On sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope. " The natural landscape of the site is distinctive with significant environmental features such as, rock outcrops and remnant bushland which are not retained or complemented by the development. As a result of the proposed construction and modification of the existing natural features for a access road I driveways, 32 dwellings, footpath areas, platforms throughout the development the proposed swimming pool and Asset Protection Zones the development will not minimise cut and fill or the development foot print. (c) Clause 58 Protection of existing flora requires that "Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species. " 5. Subdivision Consent ought not be granted to the proposed Torrens title subdivision as: a. A subdivision plan has not been provided. b. The proposed lots do not comply with the minimum allotment size of 20 ha under clause 20(2) of VVLEP 2000 and the B2 Locality Statement (clause 12(2)(b8 as set out below: Area Site Area 26.250 sq m (2.625ha) Existing dwelling Lot 2064 sqm (0.2064ha) Residue Lot 24.186 sqm (2.4186ha)

[139]

Development Consent is granted to DA2009/0800 on land at Lot 806 in DP 752038 No. 8 Lady Penrhyn Drive Beacon Hill and DA 2009/1221 on land at Lot 12 in DP 729342 and the Willandra Road, Macintosh Road and Lady Penrhyn Drive road reserves for the following: Under DA2009/0800 for: - One into Two lot Torrens title subdivision; - Construction on Lot 1 of the two lot subdivision of: o 32 self contained dwellings for use as 'Housing for Older People or People with a Disability', provided in a cluster of 8 detached buildings; o A common amenities building comprising a multipurpose meeting room, gym, toilets, kitchen swimming pool and deck area; o Car parking comprising 56 resident spaces (a mix of 1 and 2 parking spaces per dwelling) and 10 visitor spaces; o Vehicle access ways; o Landscape and Conservation Management works; and o Bushfire hazard management works. - Strata subdivision of the housing for older people or people with a disability. Under DA2009/1221 for: - the construction and use of: (i) a pedestrian path comprising a 1.8 metre wide elevated timber deck (approximately at RL 86.1) and 1.8 metre wide concrete ramps (at 1:14 grade) cut into existing ground, between retaining walls. (ii) a 6.5 metre wide meandering asphalt driveway with 750mm wide drive over landscaped roadside stormwater detentions zones (SDZ), no raised kerbs, a services trench and a 1.8 metre wide concrete footpath. (iii) a 450mm diameter underground stormwater pipe. * to the extent development consent is necessary, to carry out works within Willandra Road, Macintosh Road and Lady Penrhyn Drive, for (iv) the installation of a pedestrian path within Lady Penrhyn Drive between Lot 12 and the roundabout intersection of Lady Penrhyn Drive and Willandra Road. (v) upgrade the existing pedestrian refuge and crossing point on the northern arm of the roundabout intersection of Macintosh Road and Willandra Road to satisfy Council's engineering design standards; (vi) modification of the gradient of a 40 metre section of footpath along the northern side of Macintosh Road between Willandra Road and Parr Parade to satisfy Council's engineering design standards.

[141]

Site Sections, Elevations DA1100 01 Site Sections, Elevations DA 1101 01 Pedestrian Access Plan DA 1200 01 Pedestrian Access (buildings B1, B2, Common) DA 1201 02 General Arrangement- Plans ILU Type A1 Plans DA 2101 02 ILU Type A2 Plans DA 2102 02 ILU Type B1 Plans DA 2103 02 ILU Type B 2, B3, B4 Plans DA 2104 02 ILU Type C1,C2 Plans DA 2105 02 Community Building Plans DA 2106 02 General Arrangement- Elevations and Sections ILU Type A1 Elevations and Sections DA 3101 01 ILU Type A2 Elevations and Sections DA 3102 01 ILU Type B1 Elevations and Sections DA 3103 01 ILU Type B2 Elevations and Sections DA 3104 01 ILU Type B3 Elevations and Sections DA 3105 01 ILU Type B4 Elevations and Sections DA 3106 01 ILU Type C1 Elevations and Sections DA 3107 01 ILU Type C2 Elevations and Sections DA 3108 01 Community Building Elevations/Sections DA 3109 01 Detail Arrangement Design Quality Drawing DA 4000 01 Engineering Plans Drawing Number Revision (dated) Prepared By SK01 P5 (11.05.10) Bonacci Group SK02 P5 (11.05.10) Bonacci Group SK03 P5 (11.05.10) Bonacci Group SK04 P3 (11.05.10) Bonacci Group SK05 P2 (11.05.10) Bonacci Group SK06 P3 (11.05.10) Bonacci Group SK07 P3 (11.05.10) Bonacci Group SK08 P3 (11.05.10) Bonacci Group SK10 P2 (11.05.10) Bonacci Group SK15 P1 (11.05.10) Bonacci Group SK16 P1 (11.05.10) Bonacci Group SK17 P1 (11.05.10) Bonacci Group

[214]

(h) Kitchen A kitchen in a self-contained dwelling must have: (i) a width of at least 2.7 metres and a clear space between benches of at least 1,450 millimetres, and (ii) a width at door approaches of at least 1,200 millimetres, and (iii) benches that include at least one work surface: (a) that is at least 800 millimetres in length, and (b) the height of which can be adjusted from 750 millimetres to 850 millimetres, and (iv) a tap set: (a) that is located within 300 millimetres of the front of the sink, and (b) that is a capstan tap set or that comprises lever handles or a lever mixer, and (v) a thermostatic mixing valve for the hot water outlet, and (vi) cook tops: (a) with either front or side controls, and (b) with controls that have raised cross bars for ease of grip, and (c) that include an isolating switch, and (vii) a work surface adjacent to the cook top and at the same height and that is at least 800 millimetres in length, and (viii) an oven that is located adjacent to a work surface the height of which can be adjusted, and (ix) "D" pull cupboard handles that are located towards the top of below-bench cupboards and towards the bottom of overhead cupboards, and (x) general power outlets: (xi) at least one of which is a double general power outlet within 300 millimetres of the front of a work surface, and (xii) one of which is provided for a refrigerator in such a position as to be easily accessible after the refrigerator is installed. (i) Main Bedroom At least one bedroom within a self-contained dwelling must have: (i) an area sufficient to accommodate a wardrobe and a queen-size bed with a clear area at least 1,200 millimetres wide at the foot of the bed, and (ii) 2 double general power outlets on the wall where the head of the bed is likely to be, and (iii) at least one general power outlet on the wall opposite the wall where the head of the bed is likely to be, and (iv) a telephone outlet next to the bed on the side closest to the door and a general power outlet beside the telephone outlet, and (v) a potential illumination level of at least 300 lux.

[225]

Environmental Site Management Plan An Environmental Site Management Plan ("ESMP") is to be prepared by the Project Ecologist for the subject land consisting of proposed Lot 1 ("the site"). The plan is to be approved by Council prior to the issue of a Construction Certificate. Where the Project Ecologist is unable to prepare the documentation as required by this condition, the documentation shall be prepared by a suitably qualified person to the satisfaction of the Project Ecologist. The ESMP shall include the following:- (a) An Environmental Feature Survey is to be produced for the site showing the location of all environmental features that are to be retained as identified in plans under this consent (eg Termite Mounds, seeps, soaks and rock outcrops), and the boundary delineating the asset protection zone from the development footprint. The locations of features should be marked using differential GPS. The Project Ecologist is to ensure that all environmental features identified in this survey are protected and ultimately retained post development. (b) A Soil Seedbank Translocation Plan is to be prepared in accordance with Department of Environment and Climate Change Draft Guidelines for the Management of Duffys Forest EEC Remnants: Soil Seedbank Translocation Guidelines and in consultation with Council. The site has been nominated by Council as Red Hill Reserve, approximately 704m to the west of the site. The resultant translocation shall match the available space at Red Hill Reserve which is 4500 m2. In addition to offsetting the loss of biodiversity at the development site, the translocation site will provide a managed recipient site for the Pimelea curviflora var curviflora and ROTAP and regionally significant species in the instance that they require removal. The plan should outline; i. Methods and staging; ii. Performance evaluation (including the development of measurable target(s), monitoring of the translocation (including monitoring of threatened and significant flora) and associated reporting for a period of five (5) years from the completion of the translocation: and iii. Proposed maintenance program for the recipient site for a period of five (5) years from the completion of the translocation. Soil used in the translocation will, in the first instance be taken from areas around the existing Pimelea curviflora var curviflora specimens and other areas on the site considered suitable habitat for the species (woodland areas with ironstone gravel in the soil). Propagative material will be collected from site and used in the translocation such that at least 85% of the number of species currently onsite are reflected in the resultant translocation. (c) A Works Environment Protection Plan (WEPP) is to be prepared to ensure that all personnel working on the site are aware of the elements of the site to be protected. A copy of the WEPP must be kept in the site office. All site personnel must be inducted by the Project Ecologist with an induction record being maintained and available onsite at all times. All site personnel inducted will:- (a) Be familiar with the names and contact details of relevant people and authorities in the event of any environmental or site management emergency that may arise; (b) Be familiar with the presence of environmentally significant areas and species prior to construction commencing; (c) Be familiar with the location of trees with hollows and their importance to a variety of wildlife species; (d) Be familiar and aware of the presence of weed locations and the potential of weed seed propagules accidentally being introduced to the site. (e) Identify threatened species of fauna that may be present or venture into the subject site. (f) Identify threatened species of fauna that may be cryptic such as the Red-crowned Toadlet, Heath Monitor, etc. (g) Be familiar with animal welfare issues and procedures should human-wildlife interactions take place during the construction phase. (h) Have an understanding of flora and fauna management issues. (d) A Soil and Water Management Plan (SWMP) is to be prepared and must cover and apply to all works on the site, along with staging and maintenance requirements. The SWMP must meet, as a minimum, the requirements outlined in the Landcom publication Managing Urban Stormwater: Soils and Construction - Volume 1, 4th Edition (2004) . The SWMP is to be cross-referenced to other "plans" required by these conditions, where appropriate. The SWMP is also to meet any EPA licence requirements. The SWMP shall contain mechanisms for monitoring the condition of the surface water run off from the site to ensure control mechanisms are working and that the surface run off complies with the requirements of the above referenced Landcom publication. The monitoring program shall be designed in accordance with the "Study Design" requirements of Australian Guidelines for Water Quality Monitoring and Reporting (ANZECC, 2000) and incorporate suitable spatial and temporal replication. (e) A Biodiversity Management Plan is to be prepared in accordance with Councils Guidelines for Preparing a Biodiversity Management Plan . The plan shall include mechanisms for the monitoring & maintenance of managed vegetation onsite and remnant vegetation in the Council road reserve to the south-east of the site. Where the project ecologist identifies any hydrologic stress in these areas, the project ecologist shall oversee modification to the stormwater system such that the stress is rectified. The BMP shall apply to the site in perpetuity. Details demonstrating compliance with this condition are to be forwarded to Council for approval prior to the release of the construction certificate. Details demonstrating compliance with this condition are to be forwarded to Council for approval prior to the release of the construction certificate. Reason : Environmental protection

[228]

Details demonstrating compliance with this condition are to be forwarded to Council prior to the release of the construction certificate. Reason: To ensure compliance with the requirement to manage threatened species on the site 12 Stormwater drainage and On-site Detention Compliance Certification i. The stormwater drainage system shall be configured in accordance with the Stormwater Experts Joint Report dated 28 May 2010 and Bonacci Stormwater Quantity and Quality Investigation Report Revision 4 specifications and plans ii. Drainage plans detailing the provision of On-site Stormwater Detention are to be provided in accordance with Warringah Council's "On-site Stormwater Detention Technical Specification" and in accordance with the approved stormwater plans Full details demonstrating compliance with the requirements of this condition, in addition to certification from either Council or a suitably qualified member of the Australian Institute of Engineers stating the stormwater drainage design is in accordance with the above requirements, is to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. If Council is to issue the Compliance Certificate for these works, the fee associated with the issue of the Compliance Certificate is to be in accordance with Council's Fees and Charges. Reason: To ensure appropriate provision for the disposal of stormwater and stormwater management arising from the development and to ensure development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained. 13 Stormwater Quality Management System Compliance Certification (i) The stormwater drainage system is to be configured to deliver the water quality outcomes specified in the Stormwater Quantity and Quality Investigation prepared by Bonacci Group (Rev 4, May 2010) . (ii) In order to demonstrate that the stormwater quality management system is performing as predicted in the Stormwater Quantity and Quality Investigation prepared by Bonacci Group (Rev 4, May 2010) (thereby minimising impacts to downstream environments) a design report demonstrating compliance is required. The report will need to demonstrate that the following elements have been incorporated into the Water Quality Monitoring Program: (a) The monitoring program shall be designed in accordance with the "Study Design" requirements of Australian Guidelines for Water Quality Monitoring and Reporting (ANZECC, 2000) and incorporate suitable spatial and temporal replication (e.g. before during and after development). (b) The monitoring program shall be designed to assess whether the stormwater quality management system is performing as predicted in the Stormwater Quantity and Quality Investigation prepared by Bonacci Group (Rev 4, May 2010) (iii) The monitoring program will be implemented and assessed by suitably qualified and experienced persons during construction and continue for a 12 month period after the system has been shown to be consistently treating site runoff as expected. A Compliance Certificate is to be issued by Council or an Accredited Certifier in Civil Works registered with Institute of Engineers Australia, or a suitably qualified member of the Institute of Engineers, Australia stating the stormwater drainage design is in accordance with the above requirements. If Council is to issue the Compliance Certificate for these works, the fee associated with the issue of the Compliance Certificate is to be in accordance with Council's Fees and Charges. Details demonstrating compliance with (ii) are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure appropriate provision for the disposal of stormwater and stormwater management arising from the development. 14 Dewatering during excavation works If excavation works require dewatering below the water table, a bore license must be applied for and obtained from the Department of Environment Climate Change and Water. The bore license must be obtained prior to commencement of dewatering works. All requirements of the Department of Environment Climate Change and Water are to be complied with and a copy of the approval must be submitted to the Certifying Authority. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To prevent ingress of sub-surface flows into the basement area and to comply with State Government Requirements. 15. Landscaping All plants used for landscaping for this development must be grown from provenance seeds and cuttings collected from the site except in the instances detailed and as follows: a) as approved by and to the satisfaction of Council or its delegate that planting within the private curtilages of the dwellings on a. proposed Lot 2 ; or b. as detailed on the approved strata plan.

[273]

No Removal of Trees on Public Property No trees or native shrubs or understorey on public property (footpaths, roads, reserves, etc.) shall be removed or damaged during construction unless specifically approved in this consent including for the erection of any fences, hoardings or other temporary works. Reason: Protection of existing environmental infrastructure and community assets. 34. Intentionally left blank 35. Intentionally left blank 36. Use of fill Fill to be used on the site for construction of the approved work must comprise material excavated from the site in the first instance. Any fill that is necessary to be brought onto the site must have each load certified as Virgin Extracted Natural Material (VENM). Certification for each load must be made available to Council. The Project Ecologist is to certify that this condition has been complied with and provide the Principal Certifying Authority with compliance certification. Reason: Environmental Protection 37. Trees (1) Tree roots of 50mm or greater in diameter encountered during excavation, shall only be cut following consultation with a suitably qualified Arborist. Tree roots between 10mm and 50mm in diameter, severed during excavation, shall be cut cleanly by hand. (2) All new overhead utility services are to be located outside the canopies of existing trees. (3) The following guidelines are to be complied with at all times: (a) No activities, storage or disposal of materials shall take place beneath the canopy of any tree to be retained. (b) Trees marked for retention are not to be damaged or used to display signage, or as fence or cable supports for any reason. (c) Siting of sheds, stockpiles and vehicle parking should be sited so that they are remote from trees to be retained. (d) Site personnel are to be made aware of tree requirements and protective measures. Paving materials placed within the dripline of any tree should be of a porous material. During the construction period all trees to be retained are maintained in a healthy and vigorous condition in accordance with Australian Standard 4970 Protection Trees on Development Sites. (4) All trees on neighbouring properties are to be protected from adverse impacts caused by the works. Any excavations or changes of level occurring within the canopy of trees on neighbouring properties shall only be undertaken following consultation by a suitably qualified Arborist. Any mitigating measures and recommendations required by the Arborist are to be implemented. The owner of the adjoining allotment of land is not liable for the cost of work carried out for the purpose of this clause. Reason: Protection of Trees. 38. Tree Pruning Any tree pruning necessary for the approved construction shall be carried out under the supervision of an appropriately qualified Arborist and be in accordance with the relevant Australian Standards. Note: The following Australian Standard applied at the time of determination: o Australian Standard AS 4373.2007 - Pruning of Amenity Trees. Reason: To ensure protection and longevity of existing trees. . 39. Vehicle Crossings The provision of two vehicle crossings of a width to be determined in accordance with Section 3.2 of Australian Standard AS/NZS 2890.1:2004 and in accordance with Warringah Council Drawing No A4-3330/1 Normal and specifications. An Authorised Vehicle Crossing Contractor shall construct the vehicle crossing and associated works within the road reserve in plain concrete. All redundant laybacks and crossings are to be restored to footpath/grass. Prior to the pouring of concrete, the vehicle crossing is to be inspected by Council and a satisfactory "Vehicle Crossing Inspection" card issued.

[300]

Section 88B Instrument Asset Protection Zones Prior to the issue of an occupation certificate, an instrument in registrable form containing a public positive covenant in favour of the Council pursuant to section 88E Conveyancing Act, 1919 and a section 88B instrument which includes the covenant pursuant to section 88E shall be prepared and submitted to Council for endorsement requiring the Asset Protection Zones to be established and maintained in accordance with - the requirements of the NSW Rural Fire Service (RFS) General Terms of Approval for this development as listed elsewhere within this consent, - Environmental Site Management Plan, and - the approved plans stipulated within this consent, In the event of an inconsistency between the above listed documents the requirements of the RFS will prevail to the extent of the inconsistency. The Council shall execute the above instruments at the same time as the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instruments may be registered on the title of all the allotments details on the strata plan applying to proposed lot 1 at the same time as the strata plan is registered.. The instrument must stipulate that the only person with the right to release, vary or modify the covenant is the Council. All costs associated with the preparation, execution and registration of the instrument are to be borne by the owner of the land. 50. Removal of All Temporary Structures/Material and Construction Rubbish Once construction has been completed all silt and sediment fences and straw bales unless otherwise required by the environmental site management plan, silt, rubbish, building debris, and temporary fences are to be removed from the site. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure bushland management . 51. Works Adjacent to Tree Roots Construction works, development (including utilities), or soil level changes within the critical root zones of the trees identified for protection shall be avoided, or, if unavoidable, shall be restricted to pier and beam style or suspended slab construction (including driveway construction). Reason: To protect trees to be retained. 52. Establishment of Stormwater Quality Management System All elements of the proposed stormwater drainage system must be fully established prior to occupation, in accordance with the Stormwater Experts Joint Report dated 28 May 2010 and Stormwater Quantity and Quality Investigation prepared by Bonacci Group (Rev 4, May 2010) and the approved stormwater plans such that the system will deliver the expected performance outcomes. This includes but is not limited to establishment of plantings, soil media, erosion protection and other elements of the stormwater quality management system that are necessary to deliver the expected performance outcomes. The Project Ecologist and the Project Engineer are to certify that this condition has been complied with and provide the Principal Certifying Authority with compliance certification, copies are to be immediately forwarded to Warringah Council. Reason : Environmental Protection, Monitoring and Enhancement 53. Weed Control Such amount of weed control and bush regeneration, in accordance with the approved Environmental Site Management Plan must be undertaken on the site prior to the occupation certificate being issued as to leave the site requiring only low level weed maintenance. The Project Ecologist is to certify that this condition has been complied with and provide the PCA with compliance certification, copies are to be immediately forwarded to Warringah Council. Reason: To ensure environmental protection 54. Restriction on animals No cats, dogs (other than "assistance animals" as defined by the Companion Animals Act, 1998), horses, sheep, cattle and other animals of the kinds which fall within the definition of "stock" under the Rural Lands Protection Act 1998 are permitted onsite of Lot 1 in the proposed torrens title subdivision at any time in-perpetuity unless under the immediate control of a resident or they are otherwise restrained.

[303]

Reason : To ensure bushland management 55. Bush Regeneration Works Bush regeneration works in accordance with the Environmental Site Management Plan are to start at the commencement of works onsite and continued and maintained as per the requirements of the Environmental Site Management Plan. The Project Ecologist is to certify that this condition has been complied with and provide the PCA with compliance certification, copies are to be immediately forwarded to Warringah Council. Reason: Environmental Protection 56. General Watercourse and Riparian Areas Matters At all times, unless in accordance with the approved works it must be ensured that: (a) No materials or cleared vegetation that may obstruct flow or cause damage to wetlands or intermittent watercourses are to be left on any land. (b) All drainage works capture and convey runoffs, discharges and flood flow in accordance with the approved plans and do not obstruct or otherwise change the pre-development hydrology of the site except as required by Council's onsite detention policy. Discharge points are to be sited in accordance with Stormwater Quantity and Quality Investigation report prepared by Bonacci Group (Rev 4, May 2010) and the approved stormwater plans and stabilised to prevent erosion. Any excavation must not result in diversion of or damage to any watercourse (including wetlands and intermittent watercourses), bank instability or native vegetation. (c) Watercourse diversion, realignment or alteration does not result from site works and must maintain the existing geomorphic functions, including flow patterns and soil stability. (d) Any vegetation or other material removed from the area of operations shall be disposed of lawfully to an appropriate site where the material cannot be swept into downstream environments. No Burning of the material is permitted. Reason: Environmental Protection, Monitoring and Enhancemen t Reason for deletion: this is covered by condition 55 57. Registration of Encumbrances for On-site Stormwater Detention A copy of the certificate of title demonstrating the creation of the positive covenant and restriction for on-site storm water detention as to user is to be submitted to Council following registration.

At a glance

Court

Decision date

Before

Source

Judgment (385 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)

Cited By (4)