Marina Bay Development Pty Ltd v Pittwater Council

Land and Environment Court (NSW)|2009-09-01|Before: Mr J

Introduction 1 On 19 September 2006 Tuor C gave judgment in Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 577) refusing a development proposal (six dwellings over five levels plus basement parking for 12 cars) at 2079 Pittwater Road, Bayview (lot 1 DP 544355).

2 On 16 January 2008 I gave judgement in Marina Bay v Pittwater Council [2008] NSWLEC 14. That matter involved a development application for the demolition of the existing single dwelling and the construction of seniors housing in the form of an in-fill self-care housing development containing six dwellings and basement car parking. The building extended over six levels with a top RL of 22.85. As I observed in that judgment, the proposed building was very much like the building that Commissioner Tuor found to be inappropriate. Despite certain modifications I concluded that the modified design "still does not provide the necessary breaks in its built form and landscaping and, as a result, will still appear as one building when viewed from Pittwater." That appeal was dismissed and the application was refused.

The site 4 The site is situated in the Bayview Locality so named for its outlook onto the Pittwater waterway. It is located on the south side of Pittwater Road overlooking Pittwater and Scotland Island. It has an area of 2,156 sq m comprising: a roughly rectangular shaped area of 1,615 sq m with a frontage to Pittwater Road of about 26 m, a western boundary of about 81m, an eastern boundary of about 77 m and a rear boundary of about 17m. It also has, at the rear, an "S" shaped component that extends to Corniche Road having an area of 531 sq m and a variable width of about 6 m. The site has minimal lateral cross fall but has a rising step slope (of about 20%) from the street. Numerous trees and shrubs including those in the road reservation surround the existing house on the site.

5 The entire site adjoins six properties that are developed with two-storey detached dwelling houses.

The locality 6 As described in the council's Statement of Facts and Contentions the locality consists predominantly of residential allotments comprising dwelling houses in landscaped settings and having one, two and more stepped levels on their slopes. Those dwellings in Pittwater Road predominantly have setbacks in excess of the 10 m building line. The majority of these dwellings enjoy high value close and distant water views. The locality in which the site is located is visually prominent when viewed from Scotland Island and the Pittwater waterway.

7 The existing residential development on the escarpment between the ridge and Pittwater Road is not just confined to the foot and upper levels. There are also houses situated mid-slope on the escarpment for example on the hatchet shaped lots behind the houses fronting Pittwater Road. Land on the eastern side of the road down to Pittwater itself comprises foreshore public open space, pedestrian walkways and a few private boat sheds. Immediately opposite the site is the Bayview Yacht Racing Association building with open space on either side. 8 There are several existing "Seniors Living" developments in this locality including the two close by recently, completed developments at 2085 and 2091 Pittwater Road.

The proposed development 9 The proposed building is to extend over five levels with a top RL of 20.34. It is to contain 2 x 2 bedroom and 3 x 3 bedroom dwellings over three levels (RL 16.60, RL 13.30 and RL 10.0) with lift access to the basement car park (RL 7.0). One level below the basement is the pedestrian entry lobby (RL 2.70) off Pittwater Road.

10 The (two-dimensional) northeast elevation (DA 11) shows the building extending over five levels. However the building steps up the site such that it varies between one and two storeys above ground level at any point on the site, although a central element of the building in the street elevation will, theoretically, appear as three storeys about 47m distant from Pittwater Road.

11 The building will variously observe building lines of 15.4 m and about 18 m and apart from the driveway and the entry pathway from Pittwater Road. This area is to be landscaped. It is to be set back a minimum of 3 m from its side boundaries (although the basement car park projects variously into these setback areas below ground level) and these setback areas (including the areas above the basement that are to be back-filled by 1 - 3 m, contiguous with adjoining deep soil areas) are also to be landscaped. The rear yard through to Corniche Road is also to be landscaped. The landscaping plan for the site shows that in addition to a large number of shrubs , ground covers, grasses, climbers and ferns there are to be planted about 60 trees including Sydney red gum, blueberry ash, cabbage tree palms, forest oak, and spotted gum. These trees have mature heights of between 10 and 30 m and canopy spreads of between 3.5 and 10 m. The efficacy of the landscaping plan was not in dispute although as discussed later the proposed landscaping in planter boxes around unit 5's terrace is unlikely to achieve its indicated height because it would interfere with views of Pittwater from that terrace.

Planning controls 12 In addition to the Environmental Planning and Assessment Act 1979 and State Environmental Planning Policy (Housing for Seniors and People with a Disability), relevantly applicable planning controls comprise Pittwater Local Environmental Plan 1993 and Pittwater 21 Development Control Plan.

13 The site is zoned Residential 2(a) under the LEP and the proposed development, comprising a residential flat building is prohibited. The proposal is nevertheless permissible with development consent being "in-fill self-care housing" (cll 14, 17 and 18 of SEPP HSPD). There are no relevantly applicable provisions in the LEP that are to be applied to this proposal.

14 The aims of SEPP HSPD in cl 2 refer to the need to increase the supply and diversity of residences that meet the needs of seniors or people with a disability and to make efficient use of existing infrastructure and services and that such housing be of good design. These aims are to be achieved inter alia by the application of design principles that are aimed at achieving a built form that responds to the characteristics of the site under consideration. 15 Clause 29 of SEPP HSPD deals with the design of in-fill self-care housing and requires consideration of the Seniors Living Policy: Urban Design Guidelines for Infill Development. Clause 30 requires that consent must not be granted unless the consent authority is satisfied that adequate regard has been given to certain principles in Division 2. Relevant to this application those principles are contained in cl 31 and require that the proposed development should: o Recognize the desirable elements of the location's current character ... so that new buildings contribute to the quality and identity of the area. o Maintain reasonable neighbourhood amenity and appropriate residential character by: providing building setbacks and the reduction of bulk and overshadowing; providing building form and siting that relates to the site's land form; and providing building height of the street frontage that are compatible in scale with adjacent development. o Recognize the existing building line o Provide planting that is responsive to that in the streetscape and where reasonable, retain existing major trees. 16 Clause 46 requires that the consent authority be satisfied that the proposed development demonstrates that adequate regard has been given to the principles, relevantly here, in cl 33. In relation to neighbourhood amenity and streetscape cl 33 relevantly requires that the proposed development should: (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and (b) ... (c) maintain reasonable neighbourhood amenity and appropriate residential character by: i. ... ii. using building form and siting that relates to the site's land form, and (d) ... (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape. 17 Clause 38 contains development standards including: minimum lot size and frontage; and maximum building heights and it was not in dispute that these standards are met by the proposed development.

18 Section 1 of the Seniors Living Policy - Urban Design Guidelines provides that new development should contribute to the overall character of the area and should have a "good neighbourhood fit" and to this end the existing defining characteristics of the neighbourhood need to be considered. In this regard council's own planning controls may describe the relevant character of the neighbourhood. 19 Section 2 deals with site planning and design and in addition to requiring that new dwellings have a higher level of amenity and respect the privacy and amenity of neighbouring properties, the existing character of the neighbourhood needs to be taken into account. It is particularly noted that residential flat buildings can look out of place in the street in relation to smaller scale adjoining properties. The retention of existing natural features that contribute to neighbourhood character is encouraged, as is the maximization of deep soil and open space for mature tree planting and water percolation. Designs that reduce the space occupied by driveways garages and approaches thereto are encouraged.

20 Section 3 requires that new infill developments need to achieve and harmonize with the existing streetscape character or desired future character. The design principles suggest that visual bulk can be reduced by breaking up the building massing and articulation of building facades; allowing breaks in rows of attached buildings; setting back upper levels behind the front building facade; and the avoidance of uninterrupted building facades.

21 Control A4.4 of the DCP 21 contains controls that deal with Church Point and the Bayview Locality. Relevantly: "The locality has developed into a predominantly low-density residential area, with dwellings built along the steep slopes and lowlands around the base of the plateau. The locality is characterised mainly by one and two-storey detached dwellings on 600 - 1,000 sq m allotments (some smaller blocks may exist), increasing to 1 ha on the steep slopes. The residential areas are of a diverse style and architecture, a common thread being the landscaped, treed frontages and subdued external finishes. Although parts of the locality step, the natural fall of the land in most cases has been retained, and where retaining walls have been constructed, these are screened by natural vegetation. Terraced gardens are not a feature of the area and should not be encouraged."

And: "Much of the natural tree canopy has been retained, especially on the steeper slopes."

Also, in terms of desired character: "The Church point and Bayview locality will remain a low-density residential area with dwelling houses a maximum of two storeys in any one place in a natural landscaped setting, integrated with the land form and landscape."

And: "Future development will maintain a height limit below the tree canopy, and minimise bulk and scale. Existing and new native vegetation, including canopy trees will be integrated with the development. Views from the building is shall be maintained below the tree canopy level capturing spectacular views up the Pittwater waterway. Contemporary buildings will utilise facade modulation and/or incorporate shade elements such as pergolas verandas and the like. Building colours and materials will harmonise with the natural environment. Development on slopes will be stepped down along the slope to integrate with the landform and landscape and minimise site disturbance."

And: "The locality is visually prominent particularly from Scotland Island, Bilgola plateau and the Pittwater waterway. Therefore balance will be achieved between mainly maintaining the landforms, landscapes and other features of the natural environment, and the development of land. As far as possible the locally native tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, and to enhance the wildlife corridors." 22 Control D4.1 of the DCP 21 contains controls that deal with character as viewed from a public place. Relevant outcomes include: o To achieve the desired future character of the locality. o The visual impact of the built form is secondary to landscaping and vegetation, or in commercial areas and the like, is softened by landscaping and vegetation. o Buildings do not dominate the streetscape and at human scale. Within residential areas, buildings give the appearance of being two-storey maximum. o To preserve and enhance district and local views which reinforce and protect the Pittwater's natural context. 23 Control D4.2 of the DCP 21 contains controls that deal with scenic protection generally. Relevant outcomes and controls include: o Achieve the desired future character of the locality. o Bushland landscape is the predominant feature of Pittwater with the built form being the secondary component of the visual catchment. o Development shall minimise any visual impact on the natural environment when viewed from any waterway, road or public reserve. 24 Control D4.14 of the DCP 21 contains controls that deal with scenic protection in (relevantly) category one areas. Relevant outcomes include: o To achieve the desired future character of the locality. o To maintain and enhance the natural environment of Pittwater as the predominant feature of the landscape with built form being a secondary component. o To ensure sites are designed in scale with Pittwater's bushland setting and encourages visual integration and connectivity to natural environment.

Advertising and resident objections 25 The development application was lodged with the respondent on 25 June 2008. It was advertised for 28 days from 3 July 2008 resulting in 135 objections being received. Matters of concern expressed (orally and in writing) in these objections and as expressed by resident objectors when the hearing began on site, mainly comprise: o The proposal is merely a cosmetic revamp of previous development applications that were rejected by the council and the Court o The proposal, being in the form of a residential flat building, fails to respond to the LEP's desired future character statement for this area. This character statement reflects long-standing community aspirations and requires low-density detached houses with a maximum height of two storeys in a natural landscaped setting. Being medium density and by destroying the natural landscape and replacing it with artificial landscaping the development fails to meet this requirement. o The site is environmentally sensitive and steep. There will be a significant loss of existing mature natural vegetation. Extensive site excavation (up to about 8 m) is required with accompanying potential environmental and geotechnical risks for neighbouring dwelling houses. The excessive excavation results from the excessive provision of car parking. o The neighbouring close-by houses will suffer from overshadowing and loss of access to sunlight as well as loss of privacy. Amenity and ambience will also be affected as a result of the size of the building, its inadequate setbacks from side boundaries, its industrial roof-scape and its proximity to the affected homes. Planter boxes and shutters do not resolve aesthetic or privacy concerns instead adding to the unacceptable bulk and scale of the building. o The use of the steep driveway into the basement will cause excessive noise from cars breaking and accelerating whilst entering and exiting the garage together with exhaust fumes and headlights will adversely affect the amenity of adjoining properties. o Inappropriate landscaping will eventually result in large trees overhanging and overshadowing neighbouring houses. Otherwise the landscaping will not screen an inappropriate development nor will it compensate for the landscaping and native habitat that will be lost from the site. o The proposed building disregards the site and seeks to achieve a maximum yield by utilising a building footprint that far exceeds that of other nearby dwellings. The setbacks at basement level are seriously non-compliant. Moreover its excessive height and bulk is incompatible with the existing dwellings in the locality. o The Pittwater Road streetscape will be adversely affected by the nature and features of this medium density development including the driveway and basement entrance, multiple letterboxes, fire hydrant and night lighting. o The cumulative impact of this development together with other nearby recently approved/completed medium density self-care developments needs to be considered as it contributes to the progressive transformation and degradation of the neighbourhood environment.

Council's decision 26 In a report dated 26 March 2009 Miss G Hay a council town planner concluded that, having completed and assessment in accordance with the provisions of s 79C of the Environmental Planning and Assessment Act 1979, the LEP and the DCP 21: "It is acknowledged that the applicant has generally addressed the concerns raised in the two previous court cases. Issues raised previously relating to the current application such as the ability of the landscaping to screen the property, and the cumulative effect have been satisfactorily addressed and considered compliant with the relevant controls. While the applicant has not provided landscaping within the development to screen the upper portion from the lower portion which was raised in both previous court cases, it is acknowledged that issues raised regarding requirements for solar access have been addressed, and plans submitted showing that 4 of the 5 apartments (or 80%) comply with the requirements of both SEPP (HS & PD.) and Pittwater 21 DCP 21.

As such, while the proposal does not meet sundry of the development standards set out in Pittwater 21 DCP, it is considered to adequately address the standards of development set out in SEPP (HS & PD). The proposal is thus recommended for approval." 27 On 20 April 2009 the council's Development Unit considered the above officer's report in the light of presentations by the applicant and his consultant and a number of resident objectors. The unit identified a number of matters of concern including: solar access, landscaping, setbacks, excavation, geotechnical, overshadowing and visual impact. The unit thus decided that the officer's recommendation should not be endorsed and that the development application be refused for the following reasons: 1. The massing of the development and the inability of the proposal to incorporate generous landscaped spaces to break up the built form, results in an unacceptable visual impact as viewed from Pittwater waterways and surrounding locations.

The visual impact is considered inappropriate given the location of the site in foreshore scenic protection area.

The proposed built form does not demonstrate adequate regard for the design principles of SEPP (HPSD) in that the massing of the built form is concentrated in a manner that is inconsistent with the desirable elements of, and the desired existing character of, the Bayview locality.

The application has not sufficiently detailed the geotechnical/structural requirements for the excavation works and construction of the basement car park. 28 On 20 April 2009 the council decided that the development application should be refused for these same reasons. This decision was communicated to the applicant on 4 May 2009. On 25 May 2009 the applicant lodged its Class 1 appeal with this Court.

29 This judgment concludes that, subject to certain critical modifications, the proposal warrants approval.

The evidence 30 On behalf of the respondent expert evidence was provided by: o Mr. H Sanders - town planner, o Mr. L de Ambrosis - geotechnical engineer. 31 On behalf of the applicant expert evidence was provided by: o Mr. P Crozier - geotechnical engineer, o Mr. R Fleming - town planner, 32 Joint reports were prepared by: Mr. Sanders and Mr. Fleming; and Mr. de Ambrosis and Mr. Crozier.

Contentions 33 Notwithstanding the concerns of the residents the respondent contends that the application should be refused for the following reasons: 1. The massing of the proposed development and the inability of the proposal to incorporate generous landscaped spaces to break up the built form, results in an unacceptable visual impact as viewed from Pittwater waterway and surrounding locations.

The proposed built form does not demonstrate adequate regard for the design principles of SEPP (HPSD) in that the massing of the built form is concentrated in a manner that is inconsistent with the desirable elements of, and the desired and existing character of, the Bayview locality.

The visual impact of the proposed development is considered inappropriate given the location of the site in a foreshore scenic protection area.

The proposed landscaping is insufficient to screen the proposed built form resulting in an unacceptable visual impact as viewed from Pittwater waterways and surrounding locations.

The application has not sufficiently detailed the processes, likely impacts and management responses in respect of the extensive excavation and construction works proposed, particularly in view of the close proximity of the adjoining dwellings, the main road frontage and significant public usage of the adjacent public domain.

The location of a number of rooms including the terrace of proposed Unit No 5 will have a negative impact on proposed Unit Nos 3 and 4 in terms of visual and acoustic privacy.

The design of proposed Unit Nos 3 and 4 will have a negative impact on proposed Unit Nos 1 and 2 in terms of visual privacy and light and air. 34 The applicant has now provided a detailed methodology for the excavation of the site and accepts the council's comprehensive conditions of consent that together are aimed at the protection of adjoining properties during and subsequent to the excavation works. On this basis the council no longer presses contention 5 above and I am satisfied with this outcome. 35 Hence the principal contentions requiring the attention of the Court are, in essence, twofold: o Whether the internal amenity of unit nos 1, 2, 3 and 4 is satisfactory. o Whether, notwithstanding the proposed landscaping, the visual impact of the proposed building would adversely affect the streetscape and the desired and existing character of the Bayview locality.

Internal amenity 36 In relation to the first of these contentions involving the internal amenity of bedrooms I understand this to mainly involve matters of access to daylight and air and visual privacy between units nos. 1, 3 and 5 and between units 2, 4 and 5 across the 7m wide courtyards. Also According to Mr Fleming each of these courtyards "…operates as a landscaped light well providing access to natural light and sunlight". Fixed louvre privacy screens are now to be provided to the relevant windows in units 3, 4 and 5 and I understand that this has now resolved the privacy problems. 37 Despite this Mr Sanders is concerned that these screens would result in the bedrooms being "…adversely affected in terms of their own access to light and air…" This is a matter of particular concern for the occupants of a seniors living development to withstand increasing time in such rooms, as they grow older. Also, the screens would interrupt views that might otherwise be available from unit 5's dining room.

38 Plainly the privacy issue has been resolved and as there is no need to provide privacy screens to the bedrooms in units 1 and 2, the light and air concerns involve the main and second bedrooms in units 3 and 4.

39 The proposed privacy screens are depicted in Exhibit H and are angled upwards and away from the building in such a fashion that they will allow light and air into/onto the affected bedroom windows. I find this arrangement to be satisfactory. Moreover I do not accept the contention that the likely occupants of this development would spend so much time (by comparison with the general community) in these bedrooms as to warrant a greater access to light and air than would result from the proposed design.

40 As for the possible loss of views from unit 5's dining room, I expect that the proposed planter boxes around that unit's terrace would largely, (even disregarding the landscaping therein), if not entirely deny the availability of any views (below the horizontal) of Pittwater.

Character and streetscape Previous judgment 41 In dealing with the character and streetscape issue the respondent invited me to take the same approach as I took in my "highly relevant" previous judgment. In particular: "41 Because the size of the building is greater than the majority of buildings in this locality and is positioned on the main part of the site, it is essential that it be broken up so that it does not appear as one building. Hence, as submitted on behalf of the council, sections of the building should be separated by generous breaks and landscaping (see GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268). In this regard I accept the evidence provided on behalf of the council that despite significant improvements (by comparison with the development rejected by Commissioner Tuor), the proposed courtyards and landscaping therein do not satisfy this principle. Hence the development still fails to appropriately respond to the desired future character of the area as required by SEPP SL and DCP 21. I have reached this conclusion notwithstanding that this is a quality design that is reasonably integrated into the site and its stepped configuration respects the landform. I have also taken into account that the access way adds to the landscaped setting of the proposed development and contributes to the landscaped character of this locality and thus provides some support for the proposed development. However even when considered together with the other landscaping (existing and proposed) on the site it does not overcome my concern that the proposed building will predominantly read as a single structure.

42 I accept that the building will have little visual impact when viewed from Pittwater Road taking into account the retention of vegetation and that its upper levels will be little apparent. However its major impact involves its appearance when viewed from Pittwater by the many users of that waterway. This neighbourhood character consideration emerges from the planning controls and is, in the public interest a relevant and important consideration. In my assessment when viewed perpendicular from the site (disregarding landscaping for the moment), all of the levels of the building will be variously apparent to a viewer on Pittwater from about 50 m beyond the shoreline. Also, some oblique views of much of the building from Pittwater will be available from closer and distant viewpoints. Notwithstanding its strict compliance with the two-storey height limit the building will have a visual appearance of more than two storeys. Dr Lamb is correct that the 3 m site setbacks allow deep soil plantings along the site is boundaries and that such plantings will be able to provide some screening of the proposed development. Also these plantings will, together with existing vegetation including the retained canopy trees and including those on the access way, contribute to the proposed building's landscaped setting. This landscaping will certainly soften the visual appearance and provide some screening of the building but as a matter of principle landscaping should not be used to disguise an inappropriate built form.

43 In my opinion the two courtyards as presently proposed will not be sufficient to provide a generous break in the building which I accept is necessary, taking into account the planning controls that require a sensitive response to the existing character of this area. The size of the side indents into the building is not sufficient, recognizing that between these indents the connection between the upper and lower parts of the building is 7.5 m wide. Conceptually, I accept that the provision of landscaping between built forms can assist in breaking up these forms, however I have not been persuaded that the two proposed bloodwood trees can overcome this deficiency. There is too much reliance on these trees and I am concerned about the likelihood of these trees being successful. I am not convinced that the contrived sloping of the soil (some of which is underneath the building) will be able to be maintained so as to meet the volumetric and other requirements of Ms McKenzie. I also have some doubts as to how this will be integrated with the soil profile beyond the basement. I am also concerned that the necessary pruning regime to develop the shape of these trees may not be a successful and that views, including those from the terraces, will be restricted, with possible adverse consequences for them. 45 Finally, it is to be noted that the requirements of SEPP SL in effect do not require that seniors housing needs to be the same as that which surrounds it. Indeed it is not necessary to pretend that this is not a residential flat building development. It is nevertheless necessary to take into account the low-density nature of surrounding development that mainly comprises built forms in the manner of detached housing in a landscaped setting. This development in some ways exhibits the necessary sensitivity but in my opinion it does not meet the test of responding to the desirable elements of this location's character and providing a new building that contributes to the quality and identity of the area. A reduction in the apparent bulk of the building by providing a more effective landscaped break between the upper and lower parts of the building is necessary. As a result of the failure to do this I have decided that the appeal should be dismissed and the development application refused." The evidence 42 In the town planner's joint report Mr. Sanders and Mr Fleming agreed that: i. The proposed development satisfies the standards of cl 50 of SEPP (HSPD) and the building form standards as applicable to development within the D4 - Church point and Bayview locality plan pursuant to Pittwater 21 DCP. ii. In a comparison with the previously rejected (by me) proposal this application provides for: - Five residential units as opposed to six. - The elimination of the top storey and such that the maximum building height is reduced by 2.51 m from RL 22.85 to RL 20.34. - The garage level is retained at RL 7.00. - The front elevation to Pittwater Road is increased from RL 16.20 to RL 17.031 (+ 831 mm) by virtue of the revised roof form and highlight windows. - The roof shape has been modified from a series of skillion roofs to a butterfly shaped outcome incorporating a series of highlight windows. - The Pittwater Road elevation compares to the ridge height of the existing dwelling on the site at RL 18.40 and to the adjoining dwellings at 2075 (RL 13.85) and 2085A (RL 24.60). - The level of the terrace to Unit No 5 is set at RL 16.6, lower than the roof height to the front units Nos 3 and 4 and is set further back on the site to grid line D where the former scheme had terraces to units Nos 5 and 6 set at 9 m from the front elevation of the building. iii. A view of the site from the Pittwater waterway would assist the Court and Mr Sanders has not had the opportunity to do this. (This inspection was carried out on the first day of the hearing). 43 Also, like the previous proposal, the now proposed building has two courtyards that (in plan - south of grid line E) partially divide the building. These courtyards (7 m x 3 m) result in the building (unit 5's living room) being about 7.4 m wide in comparison with the site's width, at that location of about 20 m. This arrangement is very much the same as was provided for in the previous proposal although in that instance the courtyard was about 2 m shorter.

44 Taking into account these changes Mr Fletcher explained that the revised scheme addresses the issue of visual bulk and scale when viewed from the waterway essentially as follows: o The reduction in the number of dwellings and the reduction of the building height "... significantly reduces the prominence of the rear pavilion (unit 5)..." o The terraces associated with the rear pavilion are now recessed below the level of the front pavilion roofline and significantly further to the rear of the site. 45 Accordingly there is no need to "... incorporate landscaping as a mechanism to screen the visual scale of the rear pavilion ...", it now being a single storey structure. Plantings (in the planter boxes) around the new terrace will add to its amenity but is not necessary for screening purposes.

46 More generally Mr Fleming explained the scale of the building comfortably meets the outcomes required by the built form controls of DCP 21 for the Church point and Bayview locality. The height, front and side building lines and building envelope controls are complied with. Whilst he concedes that the site cover standard is not complied with, this is "... obviated by reference to landscape area standard specified by clause 50(c) of SEPP (HSPD)." (Despite this I now understand that the proposal meets the site coverage requirements.). He thus concluded: "Accordingly the DCP anticipates a scale of building on the site as proposed by the current application. Strict compliance with the site cover/landscape area standard of the SEPP could be achieved by reducing the floor area of the rear pavilion at such a reduction would have no impact on the massing of the project as viewed from Pittwater." 47 Mr Fleming also pointed out that: "The development retains the front building line as a significant landscape space with its mature vegetation within the streetscape setting" and the "... side boundary setbacks are in excess of the minimum standards of the Council DCP and a significant area of bushland is to be retained and rehabilitated at the rear of the site." 48 Despite the changes it was Mr Sanders opinion that the proposed development would still have an unacceptable visual impact as viewed from Pittwater (and only from the Pittwater waterway), an opinion confirmed following the view of the site from the waterway. In particular: "... the uppermost level would still contribute to the visual bulk of the proposed development to the extent that it would have a detrimental impact on the visual amenity of the locality from which it would be viewed." 49 The design changes noted above have not obviated these concerns and consequently the upper level of the building should be screened from view, as was the case with the previous proposal. In this context he rejected suggestions that the landscaping in the planter boxes around Unit 5's terrace could be utilised to screen the upper level built form because such landscaping would obscure views from the terrace over Pittwater. Accordingly Mr Sanders concludes: "This conflict between the viability of the landscaping and (his) view on the need to provide landscaping to screen the upper level of the development represents the principal concern of (his) in respect of the proposal as it now stands." 50 In dealing with the design principles of SEPP (HSPD) involving massing and built form in the context of the existing and future character of the locality Mr Fleming was of the opinion that the now proposed building is consistent with the built form controls in part D4 of DCP 21. He reach this conclusion taking into account the height of neighbouring buildings and the boundary setbacks that "... provide generous areas for effective landscaping." Also: "The reduced height and increased setback of the rear pavilion and its terrace significantly reduces the presence of these building elements in the long distant view to a scale that is contemplated by the locality plan and the DCP. The building responds appropriately to the outcomes anticipated by the DCP desired character at Part A4.4. The building is a maximum three storeys has adequate infrastructure to support the development as proposed and as required by the SEPP will result in a building set beneath that canopy of the tree canopy whilst minimising the loss of remnant indigenous vegetation." 51 In this regard Mr Sanders disagreed noting that the "desirable elements of the Church point and Bayview locality in Part A4.4 of DCP 21 are "a low-density residential area... characterised mainly by one and two-storey detached dwellings". Also the associated character statement describes the locality as "a low-density residential area with dwelling houses a maximum of two storeys in any one place in a natural landscape setting integrated with the land form and landscape".

52 Mr Sanders said that the proposed development would not meet the following important outcomes and requirements in Parts D4.1, D4.2 and D4.14 of DCP 21. These matters include: visual impact, character and landscaping; and views of development from the public domain. In addition it does not recognize the desired elements of the location's character as required by cl 33(a) of SEPP (HSPD).

Planning controls 53 Relevant to the proposal, SEPP (HSPD) requires, in essence, that adequate regard be given to the extent to which the new building contributes to existing residential character of the locality. In this regard siting, setbacks including building line, building bulk and form need to be considered together with the manner in which the building responds to existing landform and surrounding development. Existing major trees should be retained where possible and new plantings should be responsive to the streetscape.

54 The associated design guidelines also require consideration of and a sensitive response to existing or desired future character. This can be achieved in part by building articulation, including the setting back of upper levels behind the front building facade and the avoidance of uninterrupted building facades. Deep soil planting for mature trees is to be provided.

55 The relevant provisions in DCP 21 emphasise this visually prominent locality, it being a low-density residential area mainly developed with detached dwelling houses within a landscaped setting generally dominated by mature indigenous trees. It is intended that this character be retained into the future so as to maintain and enhance the natural environment of Pittwater.

56 The associated controls seek to minimise any visual impacts of new development especially when viewed from public places including waterways, by requiring that new development have a maximum two-storey appearance beneath the retained tree canopy so that built form is secondary to landscaping. Such development can have a diverse style and architecture but should be integrated with the landform. Facade modulation, subdued external finishes with materials that harmonise with the natural Bushland environment are required. New landscaping is to be integrated with existing landscaping including treed frontages.

57 DCP 21 also contains built form provisions including height, front and side building lines and building envelope controls that as pointed out by Mr Fleming are comfortably met by the proposal.

Character and streetscape - Court's conclusions 58 In my previous judgment I acknowledged that the size of the then proposed building was greater than the majority of buildings in the locality and will predominantly read as a single structure. Consequently it was necessary for that building to be "broken up so that it does not appear as one building". The respondent says that this same approach should be applied to the present proposal that I accept is, subject to the differences referred to above, similar to the previous proposal.

59 The applicant, in acknowledging my previous decision explained that it is not intended that the proposal follow that decision but instead goes back to the fundamentals of the planning controls. These controls are now met by the significantly amended proposal.

60 As described above Mr Sanders was concerned that the proposed building would have an unacceptable impact when viewed from the Pittwater waterway because of the contribution of unit 5 (the uppermost level) to visual bulk. It is conceded by the applicant that unit 5 would (disregarding landscaping) be variously visible from the north on Pittwater as follows (otherwise there are only very limited oblique views of the proposed building): o About 70 m from the site the upper-level (ie the clerestory windows) above the living room will start to become apparent; o About 130 m from the site about one third will be apparent; and o About 360 m from the site about two thirds will be apparent. 61 As with the previous proposal it was agreed that this proposed development would cause little visual impact when viewed from Pittwater Road.

62 Mr Fleming did not agree that these matters indicated an unacceptable impact. Notwithstanding this, the Court's attention was drawn to the landscape plan (NE Elevation Proposed Shrub Planting) that shows a shrub-planting regime that would effectively screen from view the majority of unit 5. The terrace to unit 5 measures about 15 m by 7 m and within that area contains perimeter planter boxes at the east and west edge/ends (average about 1.5 m wide) and at the south edge/end (1 m wide) for the full width of the terrace. (It also contains a centrally located, elevated swimming pool measuring about 7 m by 3 m adjoining the east-west planter box.)

63 Taking these matters into account I accept that such a planting regime would, also considering other existing and proposed landscaping as shown on the landscape plan (NE Elevation Existing and Proposed Vegetation) substantially respond to the principal criticism of the previous proposal, by providing a visual, vegetated separation between the lower and upper elements of the building. However, without it I agree with Mr Sanders that the proposal in its present form would not, despite compliance with the envelope and other controls, provide the necessary sensitive response to the existing character of Bayview.

64 In this regard, Mr Sanders did not believe that the planter box landscaping would be effective in the long term because it would block views of Pittwater from unit 5 and from its terrace. In all likelihood plantings in the planter box would be maintained by the occupants at a (lower) level (by comparison with what is shown on the landscape plan) so as to facilitate access to these views. Consequently the landscaping would not provide the necessary screening of the upper level (unit 5) of the building.

65 In response and in order to deny the opportunity to limit the height (and thus the screening effect) of the proposed shrubs, the applicant offered to install a 1.2 m high solid wall between the swimming pool and the east-west planter box. This would deny views over Pittwater and thus protect the landscaping (that would be conditioned to be maintained at a height of a least 2 m) because there would be no benefit in reducing or constraining the height of the plantings.

66 Whilst Mr Fleming believed that this arrangement could work, I agree with Mr Sanders that this would be an inappropriate, "contrived" "band-aid solution". In my opinion it would not constitute good design. Moreover it would produce an ongoing tension or conflict between the wall and/or the landscaping and the not unreasonable expectation of being able to take advantage of otherwise available quality views of Pittwater.

67 The applicant also proffered the option of providing a flat roof above the living room to unit 5, thus lowering this element of the building by about 1 m, thus effectively removing the unit's north facing highlight windows. When this proposition is considered in the light of the photomontage representations (Exhibit C - DA03 - views of the development from Pittwater) of the proposal, the benefits in terms of visual impact are, in my opinion, obvious and significant.

68 The question that thus arises is whether, (disregarding landscaping), the extent of the visibility of unit 5 (as conceded by the applicant above) would be so reduced by the provision of a flat roof, that it would result in the building providing the necessary response to the requirements in the planning controls for the Bayview locality.

69 Subject to certain further modifications to the design I believe that it would largely achieve this. I have reached this conclusion taking into account that very little of the living room part of unit 5 would be seen from closer viewing positions. As the viewer moves further away from the site more of the structure would become apparent but the increasing distance between the viewer and the structure would tend to ameliorate this. Also relevant here is the fact that the northernmost part of unit 5 (the living room) is set back almost 26 m behind the front facade of the building (that is on the 14.53 m building line).

70 In these circumstances I am satisfied that the landscaping in the planter box on the south edge of the terrace approximately to the extent of the width of unit 5's living room does not need to be provided for screening purposes. Landscaping must nevertheless be provided here to ensure a visible soft edge to the planter box whilst continuing to facilitate views of Pittwater.

71 The further modifications that I require are aimed at reducing the apparent bulk and scale of the building by improving its landscaped backdrop. To this end, landscaping (taller shrubs) is to be provided on the terrace area to the east and west of an approximate south to north projection of the living room's east and west walls in planter boxes that are a minimum of 3 m wide (ie the presently proposed planter boxes are to be widened from an average of 1.5 m wide to a minimum of 3 m wide). This will provide a similar landscaped effect (with the central width of about 8.5m omitted) as shown on the landscape plan (NE Elevation Proposed Shrub Planting). With pedestrian access being denied to these (planter box) areas the landscaping can grow unhindered by the need to provide access to views and will contribute to a landscaped backdrop behind the roof (of the living rooms) of units 3 and 4. 72 This arrangement will also have the benefit of screening unit 5's main bedroom and dining room (that project 3 m to the west and east beyond the west and east walls of the living room) from view although because these parts of the building are set back a further 7 m to the south (the courtyard here has been increased in length by 2 m) they are not of critical concern.

73 With the implementation of the changes just described I would be satisfied that any impacts associated with the top level of the proposed development would not contravene the planning controls to the extent that the development should be refused. However I am somewhat concerned that the presentation of units 1, 2, 3 and 4 to the north is not sufficiently responsive to the character requirements of the planning controls. In particular these controls refer to this locality as comprising a low-density residential area mainly developed with detached dwelling houses with the emphasis on limiting building bulk where new development should have a maximum two-storey appearance beneath the retained tree canopy.

74 I have formed this view taking into account the architectural plans and the photomontage representations of the development that reveal that when viewed from the north (ie the south elevation) the proposed building presents as being bulkier than is necessary. In this regard I am concerned at the use of pitched roofs (rising from south to north) that result in wall heights that are unnecessarily high notwithstanding that they provide for highlight windows into living rooms and bedrooms. I believe that this concern can be sufficiently mitigated by a 50% reduction in height of the: highlight windows above the main bedrooms in units 1 and 2 and the stairwell between these bedrooms; and the highlight windows above the living rooms (adjacent to the terraces) to units 3 and 4. This will enable the roof above these windows to be lowered by about 500 mm.

75 Overall, subject to the above described changes to all five of the proposed dwellings being incorporated into amended plans I would be satisfied that the proposal is, despite having the appearance of a residential flat building, appropriately responsive to the planning controls sufficient to warrant approval. As I noted in my previous judgment, the requirements of the SEPP (SHPD) "do not require that seniors housing needs to be the same as that which surrounds it. Indeed it is not necessary to pretend that this is not a residential flat building development "

76 In reaching this conclusion I also reiterate that the development complies with the various building envelope provisions/requirements of DCP 21. Also there was no serious challenge to the landscaping proposal (other than as discussed above) in terms of the suitability of the species chosen to integrate with the retained existing canopy trees and the likelihood of its success of providing an appropriate setting and level of screening for the proposed development. The landscaping as shown on the landscape plans is unlikely reached at maturity shown for some years, however I acknowledge the applicant's intention to provide advanced plantings.

77 I have also taken into account that this is a contemporary building as anticipated by the planning controls and that it meets the various requirements of: facade modulation; harmonising colours and materials; and stepping down the site so as to integrate with the land form and landscape. Whilst there will be significant site disturbance, once the development is completed, this will not be so apparent as to be of concern.

78 Finally, it is important to remember when dealing with the requirements of DCP 21 in relation to character where the existing predominantly low-density residential area with dwellings is sought to be maintained that this must be considered in the light of the aims of SEPP (HSPD) that include the need to increase the supply and diversity of residences that meet the needs of seniors or people with a disability and that this can be achieved in the form of residential flat buildings. Resident's concerns 79 Many of the resident's issues are not of concern to the council although at least some of these issues (such as desired future character, landscaping and compliance with various planning controls including building footprint and building envelope) fall within the ambit of the principal contention in the case. I have already dealt with excavation.

80 In relation to suggestions of overshadowing and loss of the access to sunlight for some neighbours, taking into account the essentially north-south alignment of the site and the proposed development's compliance with the applicable building envelope controls, I am satisfied that any possible impacts are unlikely to be of determinative significance.

81 As for the concerns about the suggested "industrial roof-scape" of the proposal whilst I can understand concerns regarding the size of the roof I do not accept that it would appear as being "industrial", taking into account that it is broken up into relatively small elements as the building steps down the hillside.

82 It was suggested that vehicles entering and leaving the basement will affect neighbour's amenity in terms of noise, lights and fumes. However taking into account the likely low traffic generation that would result from five dwellings, such impacts cannot attract determinative weight.

83 The proposed landscaping is to introduce a number of canopy trees on to the site and neighbours were concerned about resultant overhanging branches and overshadowing. Again this is not a matter of determinative significance, because the existence of canopy trees is an important part of the character of this area and the planning controls require, in conjunction with new development, its reinforcement. 84 Finally in relation to resident objections, it was suggested that, together with other nearby multiunit/seniors developments this development would have a cumulative impact that would progressively degrade the neighbourhood environment. Relevantly here DCP 21 addresses such impacts by requiring that housing for seniors or people with a disability shall be in keeping with the character of the surrounding area; shall not result in such an accumulation of housing as to create "... a dominant social type..." or a "... dominant multiunit housing appearance in the neighbourhood." In this regard I acknowledge that there are two other nearby developments of this type. However having dealt with the appearance of the building in terms of the character of the area and found it to be satisfactory I do not accept that it would result in the area having a dominant multiunit housing appearance.

85 Whilst it is possible that a further development of this kind in this locality might result in a change in character of the kind that DCP 21 seeks to avoid that is a matter for council to consider should such a proposal be forthcoming. As for the matter of social type there was no expert evidence in this regard, nor was it a matter of concern to the council. In the circumstances and in the light of my conclusion that on its merits the proposal is otherwise satisfactory, this contention does not attract determinative weight. Findings and amended plans 86 The above conclusions were provided to the parties on16 October 2009. Amended plans have now been provided together with agreed conditions of consent. I have now considered the amended plans and am satisfied that they are appropriately responsive to these conclusions. Orders The orders of the Court are therefore: 1. The appeal is upheld. 2. The development application for the construction of a building containing five self-care dwellings with basement car parking and Strata Title at 2079 Pittwater Road, Bayview is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibit P (the amended plans) is retained.

      T Bly
      Commissioner of the Court
      Ajl/ljr

Annexure 'A' Conditions of Consent Marina Bay Development Pty Ltd -v- Pittwater Council

That the development be approved in accordance with Plans DA 05 Issue A, DA 06 Issue A, DA 07 Issue A, DA 08 Issue C, DA 09 Issue D, DA 10 Issue D, DA 11 Issue D, DA 12 Issue D, DA 13 Issue D, DA 14 Issue A, DA 15 Issue D, DA 16 Issue C, DA 16a Issue A, DA 17 Issue A & DA 036 Issue C drawn by Lesiuk Architects Pty Ltd, Landscape Plans 1, 2, 3, & 4 of 4 Revision A dated 23.06.08 and drawn by Landscape Architects International, Access Report prepared by Accessibility Solutions, dated 24 June 2008, Stormwater Design Calculations prepared by Ibrahim Stormwater Consulting Engineers, Arborcultural Assessment dated 2005 and prepared by Urban Forestry Australia (as updated on 24 June 2008), Report on Geotechnical Investigation prepared by Crozier - Geotechnical Consultants dated August 2009 (project ref 2567E.3), Excavation Concept Plan prepared by Stewart McGeady dated 26 May 2006 and "Joint Statements" regarding risks during excavation by both experts during the Land and Environment Court proceedings 10898 of 2007 and 10328 of 2009 save as may be amended by the conditions below.

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

Note: Persons having the benefit of development consent may appoint either a council or an accredited certifier as the principal certifying authority for the development or for the purpose of issuing certificates under Part 4A of the Environmental Planning and Assessment Act. When considering engaging an accredited certifier a person should contact the relevant accreditation body to ensure that the person is appropriately certified and authorised to act in respect of the development.

A. Prescribed Conditions:

All works are to be carried out in accordance with the requirements of the Building Code of Australia.
In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there is to be such a contract in force.
Critical stage inspections are to be carried out in accordance with clause 162A of the Environmental Planning & Assessment Regulation 2000. To allow a Principal Certifying Authority or another certifying authority time to carry out critical stage inspections required by the Principal Certifying Authority, the principal contractor for the building site, or the owner-builder must notify the Principal Certifying Authority at least 48 hours before building work is commenced and prior to further work being undertaken.
A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: a. showing the name, address and telephone number of the Principal Certifying Authority for the work, and b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working house, and c. stating that unauthorised entry to the work site is prohibited. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.
Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information: a. in the case of work for which a principal contractor is required to be appointed: i. the name and licence number of the principal contractor, and ii. the name of the insurer by which the work is insured under Part 6 of that Act. b. in the case of work to be done by an owner-builder: i. the name of the owner-builder, and ii. if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.
If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information.
The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary. B. Matters to be incorporated into the development and maintained over the life of the development:
The Estuarine Planning level is 2.3m AHD. 1A Pool fencing in accordance with the Swimming Pools Act 1992 shall be installed on the inner terrace edge of each of the planter boxes in order to deny pedestrian access to each of the level 5 planter boxes. The finished barrier shall be at least 1200mm in height.
(a) All structural elements below the Estuarine Planning level shall be of flood compatible materials. (b) All structures must be designed and constructed to achieve a low risk of damage and instability due to estuarine hazard. (c) All electrical equipment, wiring, fuel lines or any service pipes and connections must be waterproofed to the Estuarine Planning level. (d) The storage of toxic on potentially polluting goods, materials or other products which may be hazardous or pollute floodwater is not permitted below the Flood Planning level.
The minimum floor level shall be at or above the Estuarine Planning level.
As part of an integrated on-site stormwater management system a minimum 36,000 litre on-site detention tank is to be installed and operated in association with the development.
As part of an integrated on-site stormwater management system, stormwater from the on-site detention system is to be discharged directly to the kerb and gutter.
All construction of the access driveway across the public road verge must be undertaken by a Council authorised contractor.
Councils fees and charges apply to street levels and Deed of Agreement for access driveways.
To satisfy the off-street vehicle parking requirements for the development, the minimum number of vehicle space requirements shall be as follows: (a) Residential Parking 10 vehicle spaces (including 10 wheelchair accessible spaces) (b) Visitor Parking/ Wash Bay 2 vehicle spaces (including 1 wheelchair accessible space) These spaces are to be provided and retained over the life of the development.
Landscape working drawings and specifications are to be prepared for the development which incorporate a landscape maintenance strategy for the owner/occupier to administer over a 12 month establishment period. This strategy is to address maintenance issues such as irrigation, soil testing, weeding, plant staking, fertilising, pest and disease control, replanting, remedial pruning and the like. Further, provision is to be made for the landscape designer to visit the site on a 6 monthly basis from the date of issue of the Occupation Certificate. After the final inspection, the landscape designer is to issue a report to the owner/occupier certifying that all plant material is healthy and performing to expectation. A copy of this report is to be forwarded to the Accredited Certifier or Council.
The existing landscaping required to be retained together with any additional landscaping required by this Development Consent is to be maintained for the life of the development.
Screen planting is to be provided, which after three years will, in conjunction with the canopy planting, screen 50% of the built form when viewed the street and Pittwater waterway. Species selection is to incorporate locally native species. This screen planting is to be retained over the life of the development and replaced if any part of it should die or be destroyed or removed.
A minimum of 200mm clearance is to always be maintained to the tree trunk from proposed bearers, joists and decking.
The landowner must comply with all aspects of the approved Ecological Sustainability Plan dated 21 March 2006 and prepared by Footprint Green over the life of the development. Any vegetation planted outside approved landscape zones is to be consistent with: a. Species listed in the Ecological Sustainability Plan, and b. Species listed from the Endangered Ecological Community known as Pittwater Spotted Gum Forest; or c. Locally native species or locally native plants growing on site and / or selected from the list pertaining to vegetation community(s) on the site as per the Pittwater Book Native Plants for Your Garden - book available from Council and on the Pittwater Web Site.
Trees shown on tree location plan appended to the arborist report prepared by Urban Forestry Australia dated August 2005 are to be retained for the life of the development, or for their safe natural life.
Trees that die or are removed following completion of the development must be replaced with another locally native canopy tree.
At least six (6) locally native canopy trees are to be planted on the site to replace two (2) existing native trees to be removed. Canopy tree species are to be from the vegetation community(s) on the site as per the lists in the Pittwater Book Native Plants for Your Garden book available from Council and on the Pittwater Web Site.
Cats are not permitted to be kept on the site. For the life of the development any dogs that are kept by occupants are to be kept in an enclosed area such that they cannot enter areas of bushland, unrestrained, on the site or surrounding properties.
Any new fencing is to be passable by Native Wildlife.
Where fencing is required to contain a domestic animal the enclosed area shall be up to 25% of the site cover and in a location that does not impede passage of native wildlife between sites.
Over the life of the development all declared noxious weeds under are to be managed / removed in accordance with the Noxious Weeds Act 1993. Environmental weeds are to be removed and/or controlled. No environmental weeds are to be planted on the site.
For the life of the development no bush rock is to be removed or destroyed without prior approval from NSW Department of Environment and Conservation and Pittwater Council. The removal or destruction of bush rock has been listed as a Key Threatening Process under the NSW Threatened Species Conservation Act, 1995.
The development is to comply with all standards outlined in State Environmental Planning Policy (Housing for Seniors & People with a Disability) with regard to access.
Garbage enclosures/stores shall be provided and maintained in accordance with the following: 1. A separate room or an appropriately constructed area is to be provided for the storage of garbage and recyclables. 2. The walls of the enclosure shall be cement rendered and steel trowelled to a smooth, even surface. 3. The floor shall be of impervious material coved at the intersection with the walls, graded and drained to an approved floor waste within the room/enclosure. 4. Stormwaters shall not enter the floor of the garbage enclosure such that the sewer system may be contaminated by rainwaters. 5. Garbage rooms shall be vented to the external air by natural or artificial means. The installation and operation of the mechanical ventilation system shall comply with AS 1668, Parts 1 & 2.
Where waste water is directed to the Sydney Water sewerage system the installation of in-sink food waste disposal units is prohibited due to the increased loading placed on the Warriewood Sewage Treatment Plant particularly during wet weather.
All pool overflow water and waste water from the filtration process is to be directed to the sewer when available or to an approved on site disposal system.
No water pollution shall result from the operation of any plant or equipment or activity carried out.
Noise from the operation of any plant or equipment, including pool pumps and the operation of the garage door at the premises shall not exceed 5dB(A) above the background noise level.
All utility services including overhead power supply and communication cables located in the adjacent road verge & those to service the development are to be placed and/or relocated underground for the total frontage of the development site to any public road at the full cost to the developer.
The commitments identified in the BASIX Certificate and on the plans or specifications are to be fulfilled and maintained for the life of the development.
All plumbing and drainage fixtures are to be concealed and not exposed to public view on buildings over one storey in height.
All external glazing is to have a maximum reflectivity index of 25%.
New electrical connections are to be carried out using underground cabling.
Materials and colour schemes are to be in accordance with the samples submitted to Council with the application. No white or light coloured roofs are permitted.
The development is to include a minimum number of units at the rate and class as required under the Accessibility Control and in compliance with the requirements of AS 4299 - Adaptable Housing. C. Matters to be satisfied prior to the issue of the Construction Certificate: Note: All outstanding matters referred to in this section are to be submitted to the accredited certifier together. Incomplete Construction Certificate applications / details cannot be accepted.

Prior to issue of the Construction Certificate, Form 2 of the Geotechnical Risk Management Policy for Pittwater (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority.
Engineering plans/details showing on-site stormwater detention, are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such plans/details are to be in accordance with the requirements of B5.8 of Pittwater 21 DCP.
Drainage plans/details showing site stormwater management are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such plans/details are to be in accordance with the requirements of section 3.1.2 Drainage of the Building Code of Australia Housing Provision and AS/NZS 3500.3.2 - Stormwater Drainage.
Design plans/details for the access driveway and internal driveway are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such plans/details are to be in accordance with the requirements of Pittwater 21 DCP Control B6.2. Where not previously obtained, street levels / driveway profiles must be obtained from Council for the access driveway across the public road verge from the road edge to the property boundary. Street levels provided must be incorporated into the design submitted with the Construction Certificate application. 4A. Detailed Geotechnical Site Investigation Prior to the issue of a Construction Certificate, a more detailed site investigation is to be carried out with at least 4 cored boreholes put down across the building envelope to the base of the excavation.

The investigation boreholes are to be used to test the rock cores for strength and logged for defects with a view to forming a model for the design of the shoring support.

The investigation boreholes are to be used to measure groundwater levels and to obtain samples of both overburden soil and groundwater for testing.

The samples of soil and groundwater are to be used to test for potential acid sulfate soils conditions and the suitability of the groundwater for discharge off-site.

The geotechnical site model is to be used to determine the likely lowering of the groundwater level and the results given to an Arborist for evaluation of the effect on the existing trees and vegetation. 4B. Detailed Design for the Excavation The results of the Detailed Geotechnical Site Investigation are be used to prepare a detailed design for the excavation and shoring system incorporating internal bracing for lateral support in strict accordance with the descriptions of the shoring given in the Joint Report prepared by Peter Crozier and Laurie de Ambrosis dated 27 August 2009 and the concept design shown on the Northern Beaches Consulting Engineers Drawings dated 8/06/06, Job No 060310, and comprising a bundle of 5 drawings numbered 1 to 5 (NBC 1 to 5).

The detailed drawings of the shoring are to be accompanied by a Method Statement which shows the details of the staging required for excavation including the progressive installation of the internal propping support that is proposed for the shoring .In particular, the undertaking of the excavation and construction is to follow the following step by step method: - Initially clear the site for access then, prior to any excavation work install the perimeter piers as shown on NBC 1. - Before the start of excavation, engage a registered surveyor to install survey targets at the tops of each pier to act as movement monitoring targets. The surveyor is to take baseline (zero reference) target readings of these survey targets at this time. - Before the start of excavation, engage an independent vibration monitoring consultant to install vibration monitoring stations either along the bases of the foundation walls of the two adjoining houses on the east and west sides or on concrete pads along the property boundaries for future vibration monitoring. These monitoring stations, which must not be less than 4 in number equally spaced along the lengths of the east and west boundaries, are to be sufficient in number so that the vibration sensing meter, when placed on the station, is effectively in line between the source of the vibrations and the house being protected (see also condition D21A). - Only after the perimeter piers have been installed and allowed to cure and the vibration and movement monitors installed, can excavation of the soil and rock inside commence. - Excavation inside the piers (shoring) must only be taken down a maximum of 1.5 to 2.0m below the initial ground surface (as recommended in the geotechnical report) at which time the following must occur: (i) the side walls of the excavation are to be inspected by a geotechnical engineer/engineering geologist. (ii) concrete infill panels are to be constructed in between the piers, and (iii) The top row of lateral bracing as shown in the NBC drawings is to be constructed. The only permissible changes to the shoring support design as shown in the NBC drawings is to strengthen the propping and lateral support. No change is allowed that has the effect of any diminishing of the lateral support as shown in the NBC drawings.

This particular step in the excavation process is to comprise a "HOLD" point at which time the level of the excavation can only be taken deeper by certified RELEASE by the supervising geotechnical engineer/engineering geologist. The Method Statement for excavation is to ensure that the bracing beams are to remain in place until the lateral support they provide for the shoring can be replaced by the internal floors of the building. 5. Applicants will be required to obtain prior to the issue of a Construction Certificate, a Section 139 Certificate for Works on the Public Road Reserve issued by the Council under the provisions of Section 138 of the Roads Act 1993 for the design and construction of any works located on the road reserve. 6. Civil engineering details of the proposed excavation/landfill are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Each plan/sheet is to be signed by a qualified practising Civil Engineer who has corporate membership of the Institution of Engineers Australia (M.I.E) or who is eligible to become a corporate member and has appropriate experience and competence in the related field. 7. A dilapidation survey of adjoining properties 2075 Pittwater Rd, 2081 Pittwater Rd & 2081a Pittwater Rd, detailing the physical condition of the property, both internally and externally, including such items as walls, ceilings, roof, structural members and other similar items, shall be submitted to Council and the Certifying Authority (where Council does not issue the Construction Certificate) prior to the issue of any Construction Certificate. This survey is to be prepared by an appropriately qualified person appointed by the applicant . All costs incurred in achieving compliance with this condition shall be borne by the person entitled to act on this Consent. In the event that access for undertaking the dilapidation survey is denied by an adjoining owner, the applicant must demonstrate, in writing, to the satisfaction of Council that all reasonable steps have been taken to obtain access and advise the affected property owner of the reason for the survey and that these steps have failed. Written concurrence must be obtained from Council in such circumstances. Note : This documentation is for record keeping purposes only, and may be used by an applicant or affected property owner to assist in any action required to resolve any dispute over damage to adjoining properties arising from the works. It is in the applicant's and adjoining owner's interest for it to be as full and detailed as possible.) 8. A certificate prepared by an appropriately qualified and practicing structural engineer, at no cost to the Council, detailing the structural adequacy of adjoining properties 2075 Pittwater Rd, 2081 Pittwater Rd & 2081a Pittwater Rd and certifying their ability to withstand the proposed excavation and any measures required to be incorporated into the work to ensure that no damage will occur to adjoining properties during the course of the works, shall be submitted to the Certifying Authority for approval with the Construction Certificate. 9. Submission of construction plans and specifications and documentation which are consistent with the approved Development Consent plans, the requirements of Building Code of Australia and satisfy all conditions shown in Part B above are to be submitted to the Accredited Certifier. 10. The Accredited Certifier or Council must be provided with a copy of plans that a Quick Check agent/Sydney Water has stamped before the issue of any Construction Certificate. 11. The applicant is to consult with Sydney Water to establish whether there are any Section 73 Compliance Certificate requirements for this proposal, under the provisions of the Sydney Water Act, 1994. A copy of any Notice of Requirements letter which may be issued by Sydney Water, is to be provided to the Accredited Certifier with the Construction Certificate application. Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 for assistance. Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design. 12. Any proposed demolition works shall be carried out in accordance with the requirements of AS2601-1991 The Demolition of Structures. Amongst others, precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to: 1. Protection of site workers and the general public. 2. Erection of hoardings where appropriate. 3. Asbestos handling and disposal where applicable. 4. Any disused service connections shall be capped off. The disposal of refuse is to be to an approved waste disposal depot. 13. Design details and technical specifications relevant to recommendations in the Access Report compiled by Accessibility Solutions (NSW) Pty Ltd dated 24 June 2008 and prepared by Mark Relf and in accordance with all relevant accessibility provisions of State Environmental Planning Policy (Housing for Seniors & People with a Disability).must be submitted to the Accredited Certifier or Council with the Construction Certificate application. 14. A contribution of $34,992 is to be made to Cashier Code SOPS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Embellishment of Open Space, Bushland and Recreation in accordance with Section 94 Contributions Plan No.2. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate. 15. A contribution of $7,090 is to be made to Cashier Code SLEL, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Public Library Services in accordance with Section 94 Contributions Plan No.3. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate. 16. A contribution of $13,362 is to be made to Cashier Code SCSF, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Community Services Facilities in accordance with Section 94 Contributions Plan No.18. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate. 17. A contribution of $20,814 is to be made to Cashier Code SVSS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for providing improved Village Streetscapes in accordance with Section 94 Contributions Plan No.19. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate. D. Matters to be satisfied prior to the commencement of works and maintained during the works: Note: It is an offence to commence works prior to issue of a Construction Certificate.

All excavated material is to be removed from the site with the exception of topsoil which is to be used in later landscape works. This topsoil is to be stockpiled on site and stabilised during construction works. Stockpiles are to be stored outside of hazard areas and not located within the dripline of existing trees which are to be retained
All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.
All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.
Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must preserve and protect the building from damage and, if necessary, underpin and support the adjoining building in an approved manner.
Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site.
Sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Accredited Certifier's satisfaction.
Adequate measures shall be undertaken to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition. 7A. Privacy screens as identified on plans DA08, DA09, DA15 and DA16 are to comprise 45O louvre screens as generally identified within Exhibit H in Land and Environment Court Proceedings No. 10328 of 2009.
The site is to be fully secured by a fence to all perimeters to the site to prevent unauthorised access both during the course of the works and after hours.
No works are to be carried out in Council's Road Reserve without the written approval of the Council.
A Road Opening Permit, issued by Council, must be obtained for any road openings, or excavation within Councils Road Reserve associated with the development on the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site.
No skip bins or materials are to be stored on Councils Road Reserve.
A site fence and silt and sediment control fence is to be erected and maintained during the course of works along any street boundary and park/reserve boundary to the site.
A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following: - o The builder's name, builder's telephone contact number both during work hours and after hours. o That no works are to be carried out in Council's Road Reserve without the written approval of the Council. o That a Road Opening Permit issued by Council must be obtained for any road openings or excavation within Councils Road Reserve associated with development of the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site. o That no skip bins or materials are to be stored on Councils Road Reserve. o That the contact number for Pittwater Council for permits is 9970 1111.
All construction in the public road reserve must be undertaken by a Council authorised contractor.
A stamped copy of the approved plans is to be kept on the site at all times, during construction.
Toilet facilities are to be provided in a location which will not detrimentally affect the amenity of any adjoining residents at or in the vicinity of the work site during the duration of the development.
A satisfactory construction traffic management plan (CTMP) prepared by a suitably qualified traffic consultant is required to be submitted to the Private Certifying Authority prior to the commencement of any site works. The plan is to detail: o Quantity of material to be transported o Proposed truck movements per day o Proposed hours of operation o Proposed traffic routes, noting that 3 tonne load limits apply to some roads within Pittwater.
As there are existing trees to be retained within 5 metres of proposed development works, all recommendations as outlined in the supplied arborist report by Urban Forestry Australia dated August 2005 and subsequent Root Investigation Report dated June 2007, both validated in April 2008 are required to be complied with before and throughout the development period, particularly with regard to the following: (a) Works, erection/demolition of structures, excavation or changes to soil levels within 5 metres of existing trees are not permitted unless part of the development as approved, and the storage of spoil, building materials, soil or the driving and parking of any vehicle or machinery within 5 metres of the trunk of a tree to be retained is not permitted; (b) Where specified, tree guards are to be provided to all trees as indicated in the report, and are to be installed prior to the commencement of any work on the site. Tree guard materials and dimensions are specified in the arborist report; (c) All works within 5 metres of existing trees including demolition, excavation, civil works, fencing and the like must be carried out by hand and under the supervision of an experienced and suitably qualified arborist. In the event that major structural or feeder roots are encountered, the arborist is to advise the builder to carry out appropriate action to ensure the retention of the tree. (d) Signage is to be erected advising all contractors and visitors to the site that no works or storage are to take place within the dripline of existing trees. (e) Any changes or alterations made to the tree management recommendations as outlined by the arborist report due to the discovery of new structural roots or underground services during development works must be reported to the Principal Certifying Authority prior to works recommencing.
Protection measures are to be installed in accordance with all approved plans including the Arborist Report and /or Ecological Sustainability Plan. Protection measures are to be maintained for the duration of works. Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must give the owner of the adjoining property at lease seven (7) days written notice of their intention to excavate below the level of the base of the footing and furnish the adjoining property owner with particulars of the proposed work.
Demolition works must be carried out in compliance with WorkCovers Short Guide to Working with Asbestos Cement and Australian Standard AS 2601 1991 The Demolition of Structures. The site must be provided with a sign containing the words DANGER ASBESTOS REMOVAL IN PROGRESS measuring not less than 400mm x 300mm and be erected in a prominent visible position on the site. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site and disposed to a lawful waste disposal facility. All asbestos laden waste, including flat, corrugated or profiled asbestos cement sheets must be disposed of at a lawful waste disposal facility. Upon completion of tipping operations the applicant must lodge to the Principal Certifying Authority, all receipts issued by the receiving tip as evidence of proper disposal. 20A Once the requirements detailed in condition C4B are all met and only after the RELEASE is certified, the excavation can be taken deeper but not greater than in 1.0m lifts without the taking of survey readings for deflection of the perimeter walls. Each set of readings is to be given to the supervising geotechnical engineer/engineering geologist for assessment. These readings should not exceed the 4.0mm estimate of the Crozier report (cumulative lateral movement from the initial zero readings) without a halt in proceedings and re-assessment and strengthening of the lateral support provisions. These intervals for the movement monitoring of the perimeter walls are to comprise one of the HOLD/RELEASE points in the Method Statement for excavation to be "signed of "by the supervising geotechnical engineer/engineering geologist. 20B The structural engineer will be required to assess the curing time required before the building floors are considered to have attained sufficient strength to take over the propping loads from the internal bracing. In addition, the structural engineer will be required to direct the application of secondary grouting at the edges of the floor slabs to pack the shrinkage gap between the floor slab and the shoring piers so as to ensure no movement of the shoring on release of the steel bracing. 20C Release of the steel bracing is to comprise a HOLD point in the Method Statement subject to RELEASE only after certification by the structural engineer. Prior to RELEASE, the structural engineer is to ensure that a set of survey movement readings are taken before the bracing is removed and again within 24 hours of its removal. These readings are to be assessed by both the structural engineer and geotechnical engineer/engineering geologist but should show no movement within survey reading error tolerance.
Vibration from works is to be undertaken in accordance with industry best practice, to ensure excessive levels of vibration do not occur to minimise adverse effects experienced on any adjoining land. 21A Monitoring requirements The use of machine operated excavation equipment or other heavy machine operated construction equipment likely to cause ground vibrations is only to be operated when ground vibration monitoring equipment is operating and in place at the east and west boundaries of the site. The equipment is to be placed so that it is always in a direct line (i.e. the shortest distance) between the operating plant and the house being protected. The monitoring equipment must be able to provide a continuous (hard copy) record of the vibrations generated and these records made available each day for review by the supervising engineer. The maximum level of vibration at the house foundations is not to exceed 5 mm per second (or 6mm at the property boundary) . Any occurrence where the vibration level exceeds 5 mm per second is to result in the machine responsible for the vibration to stop operating and the situation reported to the supervising engineer. The machine can only resume operating after any damage to the adjoining property has been assessed by the engineer and a revised excavation method recommended by the engineer. Details for the movement monitoring have been provided in Section B of this consent with a requirement for readings at 1.0m intervals of excavation depth and at the time that the internal bracing is replaced by the internal floors of the building. In addition, for the duration of the time period that the excavation is at its final depth and the internal floors are being constructed with the steel bracing in operation, regular survey readings should be taken at weekly intervals until the steel bracing is removed. Further readings should be taken within 24 hours of release of the bracing (as mentioned in section B of this consent), again after 7 days of release of the bracing and again after 28 days. These results to be made available to the supervising structural engineer and Council (on request) prior to issue of the Occupation Certificate. 21B Supervision of the works The entire excavation process is to be supervised by a daily 'on site' presence of an experienced geotechnical engineer/engineering geologist who will be responsible for directing the installation shoring support system This person is to be given the results of the survey and vibration monitoring on a daily basis and will be responsible for interpreting and acting upon these readings. This engineer will be required to certify each RELEASE point of the excavation scheme apart from those specifically requiring structural release. 21C An independent registered surveyor is to install and take the readings on the survey targets referred to in conditions C4B and D20A. 21D An independent vibration consultant is to be responsible for the installation and reading of the vibration monitoring equipment. 21E An experienced structural engineer is to be responsible in conjunction with the geotechnical engineer/engineering geologist, for the design of the shoring system and the steel bracing and for the supervision of the installation of these elements. The structural engineer is to be on site at the time that the steel bracing is replaced by the building floor slabs as the lateral support for the shoring and to sign off the RELEASE for this HOLD point.
Street numbers are to be affixed to the building prior to occupation.
Address street numbering can only be authorised by Council. Before proceeding to number each lot/occupancy in your development, approval must be sought from Councils Planning and Assessment Business Unit.
A restriction on use of the land is to be created on the title of any new lots, the terms of which burden the said lots, benefit Council and restrict the occupancy of the lot to persons defined in State Environmental Planning Policy (Housing for Seniors & People with a Disability) as to "older people" or "people with a disability" or people who live with older people or people with a disability. All matters relating to this restriction on use of the land are to be finalised prior to release of the Occupation Certificate.
Any lease or tenancy or agreement prepared for a residence within this development is to contain terms which prohibit occupation of the residence by persons other than those specified in State Environmental Planning Policy (Housing for Seniors & People with a Disability) as aged or disabled persons together with any person who live with aged or disabled person(s). Further the "by laws" of any body corporate created through strata subdivision of the development are to contain terms which prohibit the use of any strata unit other than by persons specified in State Environmental Planning Policy (Housing for Seniors & People with a Disability) as aged or disabled together with any bona fide carer(s). E. Matters to be satisfied prior to the issue of Occupation Certificate: Note: Prior to the issue of an Occupation Certificate the principal certifying authority is to ensure that Council's assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council's written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council's written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works.

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

Prior to issue of the Occupation Certificate, Form 3 of the Geotechnical Risk Management Policy (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority.
A positive covenant/ restriction on the use of land is to be created prior to the issue of the Occupation Certificate where the recommendations of the approved Geotechnical Report requires on-going maintenance / inspections to ensure that the development achieves the acceptable level of risk criteria over the life of the development, the terms of which are to require the landowner to comply with the recommendations contained in that report.
The on-site detention system must be completed in accordance with the engineering plans and specifications required under this consent.
A positive covenant is to be created on the title of the development site to ensure the on going maintenance and performance of the on-site stormwater detention system. The terms of the covenant are to be in accordance with Councils standard wording. Proof of the creation of the covenant is to be provided to the Private Certifying Authority with the Occupation Certificate application.
The drainage/stormwater management system must be installed to the manufacturers specification (where applicable) and completed in accordance with the engineering plans and specifications required under this consent.
The works in the public road reserve must comply with Council requirements the plans/details of which are to be submitted with the Occupation Certificate application.
Prior to issue of an Occupation Certificate photographic evidence of the condition of the street trees and road reserve and area adjoining the site after the completion of all construction, must be submitted to the Principal Certifying Authority showing that no damage has been done and if damage has been done that it has been fully remediated. The photographs shall be accompanied by a statement that no damage has been done (or where damage has been remediated that Council has approved that work). In this regard Councils written agreement that all restorations have been completed satisfactorily must be obtained prior to the issue of any Occupation Certificate.
All landscape works must be completed in accordance with the landscape working drawings and specifications.
Where planting is required in areas outside approved landscape zones species are to be from the Pittwater Spotted Gum Forest Ecological Community. Three (3) small nest boxes are to be appropriately installed in trees. All planting must be appropriately completed prior to the issue of Occupation Certificate.
Where planting is required in areas outside approved landscape zones all species are to be the same as native plants growing on site and / or selected from the list pertaining to site from the Pittwater Book Native Plants for Your Garden available from Council and on the Pittwater Web Site.
Removal of Noxious and Environmental Weeds shall be in accordance with the approved Ecological Sustainability Plan.
Protection fencing that is no longer required for protection is to be removed.
All work required by the ESP (e.g. removal of protective fencing and weeds, site rehabilitation etc) to be completed prior to issue of Occupation Certificate.
All bushland on the site shall be in the same (or better condition) post development relative to pre-development except in the location of the approved zone of influence of the development on the site.
An Occupation Certificate application stating that the development complies with the Development Consent, the requirements of the Building Code of Australia, SEPP (Housing for Seniors & People with a Disability) and that a Construction Certificate has been issued must be obtained before the building is occupied or on completion of the construction work approved by this Development Consent.
A copy of the Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act, 1994, is to be forwarded to Council or the Private Certifying Authority with the Occupation Certificate.
All existing and /or proposed dwellings/sole occupancy units are to have approved hard-wired smoke alarms installed and maintained over the life of the development. All hard-wired smoke alarms are to be Australian Standard compliant and must be installed and certified by any appropriately qualified electrician prior to the issue of any Occupation Certificate.
All commitments identified in the BASIX Certificate must be fulfilled prior to release of any occupation certificate.
A dilapidation survey of adjoining properties 2075 Pittwater Rd, 2081 Pittwater Rd & 2081a Pittwater Rd, detailing the physical condition of the property, both internally and externally, including such items as walls, ceilings, roof, structural members and other similar items, shall be submitted to Council and the Certifying Authority (where Council does not issue the Construction Certificate) prior to the issue of any Occupation Certificate. This survey is to be prepared by an appropriately qualified person appointed by the applicant . Any repair works identified by the survey for damage to the neighbouring properties arising from the excavation works are to be performed and paid for by the person entitled to act on this Consent prior to the issue of any Occupation Certificate. All costs incurred in achieving compliance with this condition shall be borne by the person entitled to act on this Consent. In the event that access for undertaking the dilapidation survey is denied by an adjoining owner, the applicant must demonstrate, in writing, to the satisfaction of Council that all reasonable steps have been taken to obtain access and advise the affected property owner of the reason for the survey and that these steps have failed. Written concurrence must be obtained from Council in such circumstances. Note : This documentation is for record keeping purposes only, and may be used by an applicant or affected property owner to assist in any action required to resolve any dispute over damage to adjoining properties arising from the works. It is in the applicant's and adjoining owner's interest for it to be as full and detailed as possible.) F. Matters to be satisfied prior to the issue of Subdivision Certificate: Nil

G. Advice:

Pittwater Spotted Gum Forest Ecological Community listed on Schedule 1 (Part 3) of the NSW Threatened Species Conservation Act, 1995, or its habitat has been recorded on this property. Under the TSC Act it is an offence to harm Endangered Ecological Communities, Endangered Populations or Threatened Species. There is a requirement to keep this Endangered Ecological Community, Endangered Populations or Threatened Species, and their Habitat in good condition. For more information see the Department of Environment and Conservation or Pittwater Web page under Threatened Species.
Electrical insect killing light devices should not be used outside and not installed anywhere that they can attract and kill micro-bats.
Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act, 1979 (as amended) and/or the conditions of this Development Consent may result in the serving of penalty notices (on-the-spot fines) under the summary offences provisions of the above legislation or legal action through the Land and Environment Court, again pursuant to the above legislation. The applicant is also advised to contact the various supply and utility authorities, ie Sydney Water, Sydney Electricity, Telstra etc. to enquire whether there are any underground utility services within the proposed excavation area.
It is the Project Managers responsibility to ensure that all of the Component Certificates/certification issued during the course of the project are lodged with the Principal Certifying Authority. Failure to comply with the conditions of approval or lodge the Component Certificates/certification will prevent the Principal Certifying Authority issuing an Occupation Certificate.
In accordance with Section 95(2) of the Act, this consent will lapse if the development, the subject of this consent, is not commenced within 2 years after the date from which this consent operates. NOTE : Council may be prepared to consider an extension of this Consent period for a further 12 months, however, the request for extension would have to be received during the initial 2 year period.
To ascertain the date upon which the determination becomes effective, refer to Section 83 of the Environmental Planning and Assessment Act, 1979 (as amended).
Should any of the determination not be acceptable, you are entitled to request reconsideration under Section 82A of the Environmental Planning and Assessment Act, 1979. Such request to Council must be made in writing, together with appropriate fees as advised at the time of lodgement of such request, within 1 year from the date of determination.
If you are dissatisfied with this decision, Section 97 of the Environmental Planning and Assessment Act, 1979, gives you a right of appeal to the Land and Environment Court within 12 months of the date of endorsement of this Consent.
The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Waters sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to the web site at www.sydneywater.com.au then see Building Developing and Plumbing then Quick Check, or telephone 13 20 92.
You are reminded of your obligations under the objectives of the Disability Discrimination Act (DDA)1992.

T Bly Commissioner of the Court ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Marina Bay Development Pty Ltd v Pittwater Council [2009] NSWLEC 1343

Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 577) CASES CITED: Marina Bay v Pittwater Council [2008] NSWLEC 14 GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268

At a glance

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