McCallum v Pittwater Council

Land and Environment Court (NSW)|2010-05-24

Introduction 1 This is a class 1 appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979, (the Act) against the refusal of Pittwater Council of DA0417/09 for the construction of a deck on the rear of a property at 36 Norma Road, Palm Beach (the site). 2 The main issues are the setback of the deck from the rear boundary of the site and excessive site coverage. 3 Following a view of the site and the objectors' property and a consideration of the relevant matters under s 79C(1) of the Act, I have decided to approve the application subject to conditions which require the deck to be setback 2 metres from the rear north eastern boundary except for an area of 1.8 metres on the boundary needed to accommodate the existing pool cover. The reasons for my decision are set out below. Jurisdiction 4 The class 1 application describes this appeal as "…the replacement of existing elevated deck adjoining an existing swimming pool under the Environmental Planning and Assessment Act of New South Wales 1979 as amended." Similarly, the applicant's statement of facts and contentions reply filed on 17 April 2010 describes the development as "…a rebuilding of a deck". 5 As a consequence of that description, when the hearing commenced, the council raised the issue of my jurisdiction to deal with the application. In response, the applicant confirmed that the appeal was, in fact, an appeal under s97 of the Act against council's refusal of a development application for a new deck and approval to use the existing piers as supports for the deck. The applicant confirmed that she does not make a claim for existing use or seek retrospective approval of any built structure on the site. 6 Based on the above, I am satisfied that I have jurisdiction to hear and determine this application under section 97(1) of the Act. Background 7 The site has an area of 517 m2 and contains a dwelling, swimming pool, garage, pathways and patios. Access is from Norma Road with a driveway to the garage. 8 The site is of an irregular shape. It has a 35m north western boundary and a 32m south eastern boundary. The front (south western) boundary is 15m and the rear (north eastern) boundary is 15m. The site falls steeply (about 12.23m or 36.5%) from the high south western boundary to the lower north eastern boundary. There are no boundary fences between the residential properties in the Palm Beach locality. The dwelling on the site is multi-storey and orientated, as are the adjoining multi-storey dwellings, toward the north east with magnificent views of the water and the beach. The Proposal 9 The proposal is for the construction of timber deck with a height ranging from natural ground level to 2.6m. The elevated deck is to be located adjacent to the existing pool and intended to provide access to the pool area and a private open space for entertaining. Statutory Controls. 10 The relevant planning controls are detailed in the statement of facts and contentions filed with the Court on 25 March 2010. They include: Pittwater Local Environmental Plan 1993, Pittwater 21 Development Control Plan (DCP 21) clause D12.6 Side and rear building lines, clause D12.10 Site Coverage -Environmentally Sensitive Land, clause D12.13 Construction, Retaining walls, terracing and undercroft areas, Pittwater DCP 22 Exempt and Complying Developments, State Environmental Planning Policy Exempting Applying Development Codes 2008, Draft Pittwater 21 Local Environmental Plan Geotechnical Risk Management Policy for Pittwater 2009. 11 There is no issue about the permissibility of the deck on the site. The land is zoned 2(a) (Residential A) under the Pittwater Local Environmental Plan 1993 and the deck is permissible with consent. Council's actions 12 The development application was lodged with council on 2 October 2009 and advertised in accordance with council's notification policy. The owners of the property adjoining the site at its north-eastern boundary lodged a written objection to the application. That objection raises concerns about: the positioning of the deck from the rear setback; privacy, bulk and scale; site coverage, geotechnical stability; and the impact of the development on existing trees. 13 On 17 February 2010, council, under delegated authority, refused the application after a merit assessment on the grounds set out in the notice of refusal, (exhibit 1). The contentions, which reflect the grounds of refusal, are set out in part B of the facts and contentions as follows:

The proposed rear setback to the north eastern boundary is inadequate. (a) Clause 12.6 of DCP21 states that built structures must be a minimum of 6.5 m from the rear boundary. The rear boundary is the boundary between the site and 292 Whale beach Rd, Palm Beach to the north east. The proposed deck is located within 0.5m of the rear boundary. (b) The location of the proposed deck within 0.5m of the rear boundary: results in insufficient area for appropriate landscaping between the properties including screen planting of the undercroft; exacerbates the bulk and scale of the built form of the site; and lacks spatial separation impacting on the amenity of the adjoining property known as 292 While Beach Road. Palm Beach. Controls Clause D12.6 of DCP 21 -- Side and rear building line. Clause D12.13 of DCP 21 -- Construction, Retaining walls, terracing and undercroft areas. Site Coverage 2. The proposed deck will result in excessive site coverage. Particulars (a) Clause D.12.10 of DCP 21 specifies the maximum site coverage of 40% (206.9 m2 for the site). (b) The excessive site coverage: reduces the opportunity for vegetation to be enhanced to visually reduce the built form; and does not reduce stormwater. Controls Clause D12.10 of DCP 21 -- Site coverage -- Environmentally sensitive land." The planning evidence 14 The council relied on the evidence of its internal planner, Ms Ralph, who prepared the joint report with the applicant's town planner, Mr Goldsmith (exhibit B). Both planners gave oral evidence about the issues onsite and concurrently, at the resumed hearing in Court. 15 The Court also heard the oral evidence of the objectors to the application who spoke to their written objection lodged with the council and included in the bundle of documents tendered to the Court. 16 In an attempt to resolve the issue about the rear setback, the experts and the objectors gave evidence about 4 alternate setback designs for the deck as follows: 1. the original deck design with a 0.5 m setback off the rear north eastern boundary; 2. the applicant offered an amended design with a 2m setback off the rear north-eastern boundary apart from an area of 1.8 m in the north-eastern corner, which contains the pool cover to the irregular shaped pool; 3. the council offered to relax the DCP requirement and agree to a 4.25m setback off the rear north eastern boundary; 4. the objector suggested an acceptable setback at 3.5m off the rear north eastern boundary. 17 The alternate setback designs were drawn on plan and tendered with draft conditions at the conclusion of the evidence (exhibit G). I was able to understand the evidence and the impacts of the 4 alternate setbacks because the hearing was conducted in part onsite. At the site, I observed the site's steep topography; the existing built form on the site (well in excess of council's current site coverage controls), the existing, irregular shaped elevated pool (with no current access) and the existing pool cover extending 1.8m along the rear boundary. 18 It was clear from my view that a deck of some dimension is necessary to provide safe access to the pool area. Furthermore, it was clear from my view that, given the slope of the land, a north eastern facing deck on this site would provide a very usable private open space for the occupants of the dwelling. 19 I also inspected the objectors' property that adjoins the north eastern boundary of the site. The objectors' land also slopes steeply and contains a multi level dwelling that is orientated to the ocean views to the north east. I observed the objectors' property has elevated decks and patios on their dwelling facing the view to the water. Their rear yard adjoining the site is grassed and steep and contains a clothes line and what appears to be an aviary. Apart from two Cheese Trees and small vegetation, it looks directly at the undercroft of the applicant's cement pool built about 0.5 metres from the common boundary. The area where the elevated deck is proposed is also visible through the existing vegetation. I appreciate the impact that the elevated deck would have on their amenity if built in close proximity to the rear boundary. I understand their concern for the integrity of the existing retaining wall near that boundary and the damage that might be caused by storm water runoff onto their land through the retaining wall from the deck. Council's evidence 20 The rear boundary setback controls in cl D12.6 of DCP 21 require "that built structures must be a minimum of 6.5m from the rear boundary." Ms Ralph, consistent with her written evidence in the joint report, accepted that in the circumstances of this case the DCP control in respect of the rear setback could be relaxed. However, she did not accept as proposed by the applicant's expert that the 0.5m rear setback in the application is sufficient setback because it does not achieve adequate landscaping, spatial separation or "…a more compliant site coverage". In her opinion, without the existing Cheese Trees between the site and the objector's property, the deck at 0.5m off the rear boundary would enable a direct line of sight into the objectors' rear yard. This would in her opinion also expose the undercroft of the deck, and without appropriate landscaping create an unappealing visual outlook for the objectors from their rear open space. Her evidence is that a 0.5m and 0.2m setback does not achieve the desired outcomes in cl D12.6 of the DCP. Council's evidence is that the desired future character of the locality is best achieved if the bulk and scale of the built form is minimised. A reduction in built form will according to Ms Ralph, ensure a reasonable level of privacy, amenity and solar access within the development site, and that in turn will enhance the character of the area. 21 In Ms Ralph's expert opinion, however, because of the constraints of this site, council would agree to a variation of the requirement in cl D12.6 concerning side and rear building line setbacks which prescribe a 6.5m setback at the rear to allow a 4.25m rear boundary setback for the deck. In her opinion, a 4.25m rear setback would adequately address her concern about the spatial separation between the deck and objectors' property. Ms Ralph's evidence is that the outcomes of the DCP control are adequately satisfied by a 4.25m setback because it would allow for appropriate landscaping to address the bulk and scale of the development when viewed from the objector's private open space at the rear of their property. She was satisfied it would also adequately address the issues of overlooking and privacy. She was critical of the 2m setback because in her opinion it would not allow sufficient space for landscaping and it would not provide sufficient space between the deck and the adjoining neighbour to the north east. While she conceded that the existing built form currently exceeds the maximum site coverage control in cl 12.10 of the DCP, she was of the opinion that a setback of 0.5m would increase the site coverage to 65%. In her view, that was excessive and unacceptable because it exacerbated the breach and further reduced the opportunity for vegetation to enhance and visually reduce the built form. 22 She was also concerned that site coverage of 65% could have adverse impacts on the stormwater runoff from the property onto the objectors' land. For those reasons, she suggested a smaller deck with a setback of 4.25m on the site would be the best design to achieve the outcomes in the DCP. Council's submission about the previous deck 23 Council submits that I must disregard the applicant's evidence about the previous deck on the proposed location because it is not relevant to this appeal pursuant to s 97(1) of the Act for a new deck. Evidence is only relevant if it relates to a matter in s 79C(1) of the Act. Council relies on the principle in Zhang v Canterbury City Council [2001] NSWCA 167 and submits that .the DCP must be the focal point of my consideration of the evidence and I must have a real and genuine consideration of the relevant provisions clauses D12.6 and D12.10 of the DCP 21 and the outcomes in those controls in the particular circumstances of the case. 24 Furthermore, council submits that I should have regard to the Court's reasoning in the existing use case of Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 para 87 and accept that in this appeal there is no entitlement to a development consent. There is only an entitlement to make a development application that is then to be assessed on its merits in accordance with s 79C(1). In other words, the applicant is not entitled to a deck in the same location or for that matter the same size or setback unless it is acceptable under s 79C merit assessment. The applicant's evidence 25 The applicant argued that it is relevant to have regard to the fact that the deck was approved previously for the proposed location. The applicant in saying that submits that to disregard such a fact is against the public interest because if that is the case, if I understand his submission correctly, then no-one will lodge a DA for the replacement of deck, but rather allow the structure to deteriorate because there can be no guarantee that they will get an approval to rebuild the deck. 26 Apart from that submission, the applicant says the deck with a setback of 2m is appropriate and that based on the planning evidence of Mr Goldsmith the outcomes of the DCP controls will be achieved by the increased setback from 0.5m to 2m and the conditions imposed on the consent and given the particular circumstances of this case it is appropriate where necessary to vary the DCP setback and site coverage controls. 27 The applicant's planner, Mr Goldsmith, said that the DCP controls for the rear setback and site coverage are generic and not site specific. In his opinion there is justification in this case to vary those controls because of the specific constraints of the site, which make it unreasonable to require 6.5m rear boundary setback or 40 per cent site coverage. His evidence is that the steep fall of the site together with the existing built form and small outdoor living areas on various levels makes compliance with the 6.5 setback control, unworkable. 28 His evidence is that a deck built with a 6.5m setback on this site would result in unusable open space for the deck. In Mr Goldsmith's opinion, numeric compliance with the setback control on this site will not achieve the outcomes of the DCP. In his opinion, the outcomes of the control are better achieved with a 2m setback and appropriate screening by landscaping. In his opinion the outcome of minimising bulk and scale of built form and ensuring reasonable level of privacy, amenity and solar access within the site and adjoining residential properties can be achieved with a setback of 2 m to provide landscaping is to visually reduce the built form. 29 His evidence is that a 2m setback would provide sufficient space to import proper soil and species including at least three trees of 4m to adequately landscape the north eastern rear boundary. In his opinion, planting appropriate species in the undercroft of the elevated deck will also reduce the bulk and scale of the built form and address the objectors' concern about the undercroft area appearing unsightly. Mr Goldsmith's evidence is that the conditions proposed by council, which the applicant accepts, will ensure that the outcomes of the DCP will be achieved despite numerical non-compliance with the setback control and forty per cent site coverage control. The result will be a reduction of bulk and scale of the elevated deck when viewed from the objectors' rear open space. 30 Mr Goldsmith gave evidence that his client would accept and implement council's landscaping conditions including a condition in respect of species and maintenance of the landscaping. 31 Condition C6 of the draft conditions requires prior to the issue of a construction certificate a landscape plan approved by council with the following objectives: a. Dense screening of the deck undercroft, with the vegetative screening located immediately adjacent to the north eastern elevation of the deck, with a mature height to that of the balustrade of the deck. b. The terraced area between the north-east elevation of the deck in the rear boundary is to be landscaped with medium to dense vegetation with a mature height of at least 4 m; and c. Vegetation should comprise locally native evergreen species suitable for the location. 32 Condition C7 requires that the landscape plan shall be accompanied by a certificate from a suitably qualified structural engineer to the effect that: a. The proposed landscaping will not affect the structural integrity of the existing retaining walls. 33 Condition 8 requires a stormwater management plan prepared by a suitably qualified stormwater engineer is to be submitted to the Council prior to the issue of the construction certificate. The management plan shall detail the proposed method of deck stormwater drainage, ensuring the proposed method will not affect the structural integrity of the existing retaining walls on the rear boundary. 34 In Mr Goldsmiths' expert opinion, a line of sight drawn from a person standing on the deck with a 2m rear setback would not look directly into the objectors' rear yard if landscaped appropriately. His evidence is that the council's proposed conditions adequately deal with the landscaping issues and the stormwater runoff from the deck and the impact of the construction of the deck on the integrity of the north-eastern retaining wall. 35 The applicant's evidence is that the DCP outcomes will be satisfied with the deck being setback 2m from the rear boundary. Mr Goldsmith rejected the 3.5m and the 4.25m setbacks and said that such a setback would result in an unusable space. The size of the deck resulting from the 4 alternate setbacks was also drawn on plan to enable the Court to visualise the impact on useable space. Mr Goldsmith's evidence is that with steep topography and views to the water, it is not unusual and generally accepted to have a certain degree of mutual overlooking is acceptable and that a 2m setback achieved an appropriate balance of privacy and amenity for both the site and the adjoining property at the northeast. 36 In his opinion, the existing building in its landscape setting sits comfortably within the local setting and therefore the desired future character is retained and the bulk and scale of the built form remains the same. Applicant's statement and photographs. 37 I have read the applicant's statement and note that she explains the reasons why she has applied for approval of the deck. I accept her evidence as to a need for pool access and a useable private open space. However, I reject as justification for the approval of this application the fact that a previous deck has been demolished. While I understand that it was demolished because it was collapsing, that fact is not relevant in an assessment of this application under section 79C of the Act. Findings 38 I accept council's submission that the correct approach to this application is a determination under s 80 of the Act; subject to a consideration of relevant matters required by s 79C(1) of the Act. Relevantly in this case, the DCP has to be treated as a fundamental element in or focal point of the decision making process: Zhang In saying that, I appreciate that the provisions of the DCP are not mandatory and in the particular circumstances of the case, it is justified to vary the provisions where the underlying objective is achieved without numerical compliance with the control. 39 This is not an application to rebuild a pre-existing deck. I do not believe that the purported building approval for the demolished deck or photographs of the previous deck are a relevant consideration under s 79C(e) and I reject the applicant's submission that it is in the public interest to have regard to that fact, because to do otherwise will affect the lodgement of DAs for pre-existing structures because there will be no certainty of an approval. Each case must be considered on its own facts and a development application needs to be assessed according to the law having regard to the relevant matters in s 79C(1). 40 I accept the evidence of Mr Goldsmith that the particular constraints of this site including the steep topography, existing built form and existing limited open space and the orientation of the view mean that it is unreasonable to require a setback of 6.5m from the rear boundary on this site. I accept his expert assessment that this would result in an unusable deck. 41 I accept that the DCP control for site coverage for the site cannot be achieved because the existing built form exceeds the site coverage control. However in the circumstances of this case, the construction of the deck with a rear boundary setback of 2m would not significantly increase the site coverage on this site. I do not accept council's evidence that this deck should not be approved because it increases the already non complying site coverage. The evidence does not support a finding that the elevated deck will be perceived as a bulky addition to the built form on this site. I accept Mr Goldsmith's evidence that with appropriate landscaping in the 2m setback area and in the undercroft of the elevated deck that the outcomes of the controls in the DCP for setback and site coverage will be satisfactorily achieved. The evidence supports a finding that a variation of the setback and site coverage controls is justified in the circumstances of this case. The setback control in cl D12.6 to minimise bulk and scale of the built form will be achieved by the landscaping conditions and the 2m rear boundary setback. The condition to retain vegetation that exists and provide for more landscape screening will achieve the outcome of visually reducing the built form from the objectors' rear yard. 42 The condition about stormwater runoff will achieve the outcome in cl D12. 10 site coverage for environmentally sensitive land by minimising runoff and assist with stormwater management and address the objectors' concern. 43 I accept the view expressed by Mr Goldsmith that with steep topography and views to the water it is not unusual to have a certain degree of mutual overlooking. The question is the reasonableness of the extent of the overlooking in the particular circumstances of the case where houses and entertaining areas are focussed to the view and the sharing of the view. Mr Goldsmith's evidence about the landscaping and its ability to achieve the outcomes of the DCP provisions is supported by his sight line drawing which demonstrates a 2m setback from the rear boundary will not create unreasonable overlooking of the objector's property from the deck. I accept the applicant's evidence that the open space on the deck will have good solar access and provide useable private open space for the enjoyment of the occupants well as. It achieves the outcomes in cl C12.7 of the DCP in respect of usable private open space. 44 Based on the evidence, I am satisfied on the facts of this case that a variation of the DCP 21 setback and site coverage controls is justified. Furthermore, I am satisfied on an assessment under 79C of the Act that the objectors' concerns about privacy and overlooking from the deck to their property, and the integrity of the retaining wall on the boundary are adequately dealt with by the agreed conditions which include the requirement that the deck be setback 2m from the rear north eastern boundary with appropriate landscaping. 45 Accordingly, the Court makes the following orders. 1. The appeal is upheld. 2. Development consent to DA417/09 is granted subject to the conditions that are annexure A to this judgment. 3. The exhibits apart from exhibit 2 and exhibit 1(the plans) are returned to the parties.

      Susan Dixon
      Commissioner of the Court
      ljr

Annexure 'A' Conditions of Consent McCallum v Pittwater Council

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: 1. All works are to be carried out in accordance with the requirements of the Building Code of Australia. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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: 1. The recommendation of the risk assessment required to manage the hazards as identified in Geotechnical Report prepared by Jack Hodgson Consultants dated 12.08.2009 are to be incorporated into the construction plans. 2. For the life of the development, domestic pet animals are to be kept from entering wildlife habitat areas at all times. Dogs and cats are to be kept in an enclosed area or on a leash such that they cannot enter areas of bushland, unrestrained, on the site or on surrounding properties or reserves. Ferrets and rabbits are to be kept in a locked hutch/run at all times. 3. Over the life of the development all declared noxious weeds are to be removed/controlled in accordance with the Noxious Weeds Act 1993. Environmental weeds are to be removed and controlled. Refer to Pittwater Council website (www.pittwater.nsw.gov.au) for noxious/environmental weed lists. 4. No environmental weeds are to be planted on the site. Refer to Pittwater Council website (www.pittwater.nsw.gov.au) for environmental weed lists. 5. Any vegetation planted outside approved landscape zones is to be consistent with locally native species growing onsite and/or selected from the list pertaining to the vegetation community growing in the locality as per the vegetation mapping and Native Plants for Your Garden link available from Council's website www.pittwater.nsw.gov.au 6. In accordance with Pittwater Councils Tree Preservation Order, all existing trees as indicated in the Survey Plan and/or approved Landscape Plan shall be retained except where Council's prior written consent has been obtained, as trees stand within the envelope of approved development areas. For all other tree issues not related to a development application, applications must be made to Council's Tree Management Officers. 7. This approval/consent relates only to the new work nominated on the approved consent plans and does not approve or regularise any existing buildings or structures within the property boundaries or within Council's road reserve.

The rearmost edge and balustrade of the deck are to be set back 2m from the rear boundary, except for that part of the deck required to accommodate the pool cover. 9. The undercroft area and support structures shall be painted in a dark and recessive colour.

The approved landscape plan (noted in condition C6 below) shall be implemented and maintained for the life of the development.

The stormwater management plan (noted in condition C8 below) shall be implemented and maintained for the life of the development.

1 Note - evidence was given that the part of the desk required to accommodate the pool cover comprises deck of 1.8 metres in length along the rear most edge. 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. 1. 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. 2. 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 Principal Certifying Authority. 3. Structural Engineering details relating to the deck are to be submitted to the Accredited Certifier or Council prior to release of the Construction Certificate. Each plan/sheet is to be signed by a qualified practising Structural Engineer with corporate membership of the Institute 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. 4. Prior to the issue of the Construction Certificate a Building Certificate is to be approved by Council in relation to any remaining as built footings and piers for the deck. 5. Prior to the issue of the Construction Certificate a certificate is to be provided by either a Structural or Geotechnical Engineer stating that the existing northern boundary retaining wall (of mixed construction) is structurally sound and meets the requirements of the appropriate Australian Standards and BCA. If the certificate can not be produced, the retaining wall is to be reconstructed in accordance with the current BCA and relevant Australian Standards.

Prior to the issue of a Construction Certificate, a landscape plan is to be approved by Council and is to achieve the following objectives: a. Dense screening of the deck undercroft, with the vegetative screening located immediately adjacent to the north-eastern elevation of the deck, with a mature height to that of the balustrade of the deck; b. The terraced area between the north-eastern elevation of the deck and the rear boundary is to be landscaped with medium to dense vegetation with a mature height of at least 4m.; and c. Vegetation should comprise locally native evergreen species suitable for this location. 7. The landscape plan shall be accompanied by a certificate from a suitably qualified structural engineer to the effect that: a. The proposed landscaping will not affect the structural integrity of the existing retaining walls.

A stormwater management plan prepared by a suitably qualified stormwater engineer is to be submitted to the Council to prior to the issue of the Construction Certificate. The management plan shall detail the proposed method of deck stormwater drainage, ensuring the proposed method will not affect the structural integrity of the existing retaining walls on the rear boundary. 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. 1. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. 2. No skip bins or materials are to be stored on Council's Road Reserve. 3. 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 Council's 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 Council's Road Reserve. o That the contact number for Pittwater Council for permits is 9970 1111. 4. A stamped copy of the approved plans is to be kept on the site at all times, during construction.

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. 1. 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. 2. An Occupation Certificate application stating that the development complies with the Development Consent, the requirements of the Building Code of Australia 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. 3. 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. F. Matters to be satisfied prior to the issue of Subdivision Certificate: Nil

G. Advice: 1. 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. 2. The applicant is also advised to contact the various supply and utility authorities, i.e. Sydney Water, Sydney Electricity, Telstra etc. to enquire whether there are any underground utility services within the proposed excavation area. 3. 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. 4. 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. 5. To ascertain the date upon which the determination becomes effective, refer to Section 83 of the Environmental Planning and Assessment Act, 1979 (as amended). 6. 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. 7. 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. 8. 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.

Susan Dixon Commissioner of the Court ljr

14/07/2010 - correction - Paragraph(s) Condition C-6-b

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 : McCallum v Pittwater Council [2010] NSWLEC 1136 This decision has been amended. Please see the end of the judgment for a list of the amendments.

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