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[2014] NSWLEC 1087
Land and Environment Court (NSW)
2014-01-24
Original judgment source is linked above.
Judgment 1COMMISSIONER: The applicants appeal Pittwater Council's refusal of development application DA N0108/2013 for subdivision of one yet to be created lot into 2 lots at 232 and 234 Barrenjoey Road, Newport (the site). The proposal also includes provision of services, off-street parking and tree removal. 2The appeal is made under s 97(1)(a) of the Environmental Planning & Assessment Act 1979 (the Act).
The site and locality 3The site is steeply sloping and heavily vegetated, with rocky outcrops towards the top of the slope. Pittwater 21 Development Control Plan (P21DCP) identifies the site as being slip affected. Bushrangers Hill Reserve adjoins the north-eastern portion of the site. There is an extended and vegetated road reserve along the Barrenjoey Road frontage. 4The site is surrounded by residential development of varying age and design; typically single dwellings in landscaped settings. Adjoining dwellings to the south are accessed via a right of carriageway from Barrenjoey Road. The right of carriageway benefits and burdens the site and these adjoining properties. 5Residential development to the north along Barrenjoey and Bungan Head Roads is of a conventional nature with lots generally addressing the streets.
Relevant background and the proposal 6The overall site comprises two vacant lots - Lot D in DP367601 (232 Barrenjoey Road) and Lot 5A in DP 399973 (234 Barrenjoey Road) and has a combined area of 4255.5m2. 7In 2011, the Court granted approval for a four-lot subdivision (Miller v Pittwater Council [2011] NSWLEC 1117). An existing driveway from Barrenjoey Road provides direct access to Lots B and D with access to Lot C via a Right of Carriageway from Bungan Head Road. The existing driveway also provides access to a parking area to service Lot A. Access from the car park to Lot A is via a proposed inclinator to be eventually constructed along the southern boundary of the site. Amongst other things, the 2011 approval also includes conditions requiring the implementation of a Vegetation Management Plan that includes additional tree planting and ongoing bush regeneration. 8The 2011 approved lots, less the access area, have the following net areas:
The hearing 13The parties' experts assisted the Court. The applicants' experts were: Ms Melanie Howden (Arboriculture), Mr Ross Fleming (Planning) and Mr Robert Varga (Access and Parking). The respondent's experts were: Mr Guy Paroissien (Arboriculture) and Ms Rebecca Englund (Planning, Access and Parking). 14The hearing commenced in late January 2014 with an inspection of the site. Mr Milligan, a town planner and agent for some of the adjoining owners made submissions concerning safety aspects regarding the use of the shared carriageway. 15The location of the proposed parking was noted and the possible impacts of its construction on Tree 40 discussed. Loss of vegetation arising from earlier works was observed and discussed. 16The location of the proposed inclinator was noted, in particular its position relative to the partly constructed parking spaces for already approved lots. Preliminary plans for access stairs were discussed. 17The site was accessed via informal steps through earlier approved lots. Access through proposed new Lots A and B is best described as 'bush-bashing'. The earlier approved lot and location of the proposed building pad at the top of the site were inspected. The proposed locations of the boundaries, access point, landscaped area and building pad on new Lot B were identified. 18The trees most likely to be affected were identified on the plans and in the field. It was noted that a number of trees identified as having a high retention value were indicated for removal because of the likely impact of a future dwelling. It appeared on site that relocating the proposed building pad to the north might have less impact on the better quality trees and therefore potentially less impact overall. 19The site was viewed from the south from Barrenjoey Road and distantly, from the west, from Rowland Reserve in Bayview. 20In Court, Mr Staunton made opening submissions for the applicants and Ms Irish for the respondent. Mr Varga and Ms Englund gave evidence on parking and access issues. Arboricultural evidence was commenced however following the discussions raised on site in regards to the location of the proposed building envelope on new Lot B and the likely impact on quality trees, it was agreed that, amongst other things, amended plans and other documentation be prepared to show an alternative location, including sections and landscaping. The hearing was adjourned. The parties' experts reviewed the amended plans and prepared supplementary joint reports. The hearing resumed on 11 March with final submissions on 31 March.
The amended plans 21The amended plans show the concept dwelling relocated to the north, a repositioning of the proposed access to the inclinator relative to the proposed nearest eastern boundary with Lot A, less excavation than the original plans, compliance with the 8.5m height limit, and no part of the concept dwelling being more than 2 storeys. The amended landscape plans show indicative access stairs near the proposed inclinator as well as relocating the level area of private open space to the north of the dwelling as opposed to the west as shown on the original plans. The applicant prepared concept plans showing the indicative location and design of formal stairs from the parking platform to Lot A (Exhibit M). 22The amended plans also include a 'Construction Methodology'. Explanatory notes on the plan give the sequencing of the operations. The existing parking area is to be used as a staging area; the inclinator will be installed with a construction platform; the suspended slab parking area to be installed and then used as a staging area; tree removal; site preparation, tree protection measures, silt fencing; foundations to be excavated by hand and auger; materials and equipment to be transported by inclinator and/or construction of a conveyor system; construction of initial building platform to be used for material storage; no material is to be stored or stockpiles outside of building footprints and parking areas; and construction vehicles to wait elsewhere and be called up as required. 23It is important to note that the current application does not include the actual construction of the inclinator or the alternative access stairs. However, this is an issue raised by council in its submissions and draft conditions. 24This judgment is based on the amended proposal and plans.
The issues 25The council refused the application on the following grounds.
Lot dimensions/ subdivision 28The council contends that further subdivision of the site is inappropriate. Council maintains that the applicants have failed to adequately demonstrate that the site is suitable for further subdivision, or that an additional dwelling with a reasonable level of amenity could be introduced on the site.
Controls and evidence 29The site is zoned 2(a) Residential "A" in Pittwater Local Environmental Plan 1993 (PLEP). Clause 11 covers 'Subdivision in residential zones'. Clause 11(2) sets a minimum allotment size created by subdivision in the locality in which the site is situated of 700m2. 30Draft Pittwater Local Environmental Plan 2013 (Draft PLEP) applies. The site is proposed to be zoned E4 - Environmental Living. The relevant zone objectives are essentially to provide for low impact, low density residential development that minimises unnecessary impacts on the natural characteristics of the site and achieves the desired character of the locality. The latest draft retains the 700m2 subdivision lot size although an earlier version proposed a minimum subdivision lot size of 1200m2. Council minutes of 20 December 2013 indicate that a number of submissions had raised objections to the proposed larger minimum lot size and that further investigation and consultation on the appropriateness of the larger lot size be undertaken in the early part of 2014, following the finalisation of the Draft LEP 2013. 31Pittwater Development Control Plan 21 (P21DCP) is relevant. 32The relevant outcomes of the subdivision controls in B2.2 P21DCP are:
Submissions 40Notwithstanding the provisions of PLEP1993 and DPLEP2013, Ms Irish submits that council minutes show that a 1200m2 minimum lot size on land to be zoned E4 is still an open issue about which council has resolved to undertake further investigations and consultation. In any event, Ms Irish contends that the proposed subdivision should be refused as it fails to meet the relevant objectives of PLEP or P21DCP as it does not achieve the desired future character, does not maintain the existing environment of minimise unnecessary impacts, and will result in the dominance of built form over the natural setting. She presses the non-compliance with Lot depth and slope. 41Ms Irish asserts that the applicants have failed to demonstrate that the site is suitable for further subdivision and that a dwelling with an expected level of amenity can be built on the site. In this regard she relies on the evidence of Ms Englund. 42Mr Staunton submits that, by virtue of s 74C(5) of the Act, the size of the proposed lots is compliant with the minimum lot size controls in PLEP1993 and DPLEP2103. He also relies on the direction provided in s 79C(3A)(b) for flexibility in the application of the provisions of a DCP. Mr Staunton states that while cl B2.2 does not permit development on slopes in excess of 30%, he maintains that the applicant has produced a geotechnical report and concept drawings that demonstrate the new lot can be safely developed.
Findings 43In considering the relevance of the 1200m2 lot size in P21DCP, as submitted by Mr Staunton, s 74C(5)(b) of the Act applies. This states that a provision of a DCP has no effect if it is inconsistent or incompatible with a provision of an environmental planning instrument applying to the same land. Therefore the applicable lot size is 700m2. As stated above, new Lot A will have a net area of 700m2 with an additional 426m2 access handle. New Lot B will have an area of 847m2. Therefore both proposed lots comply with the minimum lot size control in PLEP1993 and Draft PLEP 2013. 44I also note that the 2011 consent approved lots smaller than 1200m2. I also agree with the applicants that the size of the proposed new lots is not dissimilar to surrounding development, including a recently approved subdivision at 230 Barrenjoey Road. 45Where a development application does not comply with all the standards in a DCP, s 79C(3A)(b) of the Act requires the consent authority, in this case the Court, to be flexible in applying the provisions of a DCP and allow alternative solutions that achieve the objects of the relevant standards. The key consideration is whether the proposed development meets the objectives of the relevant controls in cl B2.2, P21DCP. 46The lot width complies with cl B2.2 P21DCP in that it exceeds 16m at the building line however, depending on where the building line is measured; because of the irregular lot shape, the depth varies from about 21m to 28m. A compliant depth is 27m. In regards to the minor non-compliance with lot depth on part of proposed new Lot B, I agree with Mr Fleming in that the indicative plans show that an otherwise compliant dwelling can be accommodated on the site. 47The findings in Zhang v Canterbury City Council [2001] NSWCA 167 at [75], state that a DCP must be considered as a 'fundamental element' or 'focal point' of the decision making process and any relevant provisions are entitled to significant weight but may not be determinative. Indeed, s 79C(1)(a)(iii) of the Act requires consideration of any development control plan. However, s 79C(3A)(b) permits a flexible approach in applying provisions of a DCP to allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. 48In this regard, there is no dispute that the slope exceeds the control in the DCP and it is clear that construction of a dwelling on the site will be challenging and unsuitable for a conventional slab on ground dwelling. I am not convinced that steep slopes are uncommon or unusual in Pittwater LGA. The challenges will be abundantly clear to anyone considering purchasing the already approved Lot A. 49Crozier Taylor Geotechnical assessed the site using the relevant industry publication and Pittwater Council's Geotechnical Risk Management Policy 2009. All existing hazards were found to achieve the 'Tolerable' risk criteria. The Geotechnical Report, dated April 2013, and included in the application (Exhibit B) concludes: The site is considered suitable for the sub-division and residential development and can achieve the 'Acceptable' risk criteria over the design life of the development, required by Council's Policy, provided that the recommendations outlined in this report and any subsequent reports for individual lot development are followed.....Each building lot will require a separate geotechnical investigation and report to be submitted with their individual Development Applications once design for those developments is determined. 50On balance, I am satisfied on the evidence that the relevant outcomes of cl B2.2 (see [32]) are achieved, and the application should not be refused on the basis of non-compliance with the slope control in cl B2.2. As stated in the Geotechnical Report, further detailed investigations and recommendations will be required when any DAs are lodged for any future dwelling on the lots. 51Therefore, the appeal cannot be refused on the basis of lot size and, in my view, should not be refused on the basis of non-compliance with lot depth or slope.
Tree loss, Visual impact and Desired future character 52The council's contention is that the proposed subdivision and indicative additional dwelling will result in an unreasonable loss of established canopy trees, thus resulting in an unacceptable visual impact and inconsistency with the desired future character.
Controls 53The outcomes of cl B2.2 Land Subdivision - Residential Zoned land P21DCP relevant to this contention are:
Arboricultural evidence 57The arboricultural evidence considers the likely direct and indirect impacts of the indicative dwelling and proposed parking area and associated landscaping, as well as access - stairs and inclinator. The experts rely on a number of Impact Assessment reports and surveys prepared by Ms Howden. 58A Tree Summary Table in Exhibit V - Further supplementary joint report - arboriculture indicates the following:
Planning evidence 68In regards to visual amenity, from a planning point of view, the council contends that the desired future character is not achieved and the proposal will have unreasonable visual impacts on the natural environment as a consequence of the creation of an extra lot and subsequent development entailing the excessive removal of canopy trees thus resulting a dominance of built form. 69Ms Englund considers that the (amended) location of the proposed dwelling will result in it appearing wider when viewed from Barrenjoey Road and the waterway, and that the link to Bushrangers Hill will be diminished. Mr Fleming does not agree and opines that the revised building footprint moves any future dwelling to a point further below the ridgeline, which in his opinion is a better outcome. Mr Fleming notes that a band of vegetation will be retained between all future dwellings. 70With respect to the visual impact of the proposed parking platform, the planners agree that the location of it is not compliant with the 10m minimum front setback prescribed by cl. D10.7 in P21DCP. 71The relevant outcomes of Cl. D10.7 Front building line (excluding Newport Commercial Centre) include (as summarised):
Submissions 75Ms Irish adopts Ms Englund and Mr Paroissien's concerns about tree loss and unacceptable impacts on remaining trees. She maintains that it cannot be asserted that there is no net loss of canopy trees and that the long-term viability of locally native flora and fauna and their habitats will be not be affected. 76Ms Irish relies in part on the findings of the Commissioners in Miller 2011 in regards to minimising the visual impact of the development by retaining a substantial band of vegetation on what is proposed Lot B. She contends that no weight should be given to the photomontage prepared for the earlier matter showing the proposal from Rowland Reserve. 77Mr Staunton contends that of the 26 trees identified for removal, ten of them are unstable and could be removed without consent under cl 36(3) of PLEP. Of the remaining 16 trees, two are of high landscape significance, one is of moderate significance, and the remaining trees are of low landscape significance. He asserts that the arborists agree that new planting is possible both on Lot B and to screen the proposed parking platform and that Exhibits O and Q are consistent with the Vegetation management Plan (VMP). Mr Staunton maintains it is unnecessary to amend the Vegetation Management Plan at this stage, as it is more appropriate to do so when an application is made for a dwelling on new Lot B. 78Mr Staunton submits that the 'banding' of vegetation referred to in the 2011 decision will be retained, there will be substantial separation between each proposed dwelling, and any future dwelling will sit in a landscaped setting below the canopy. He contends that the outcomes in cl B2.2 don't require buildings to be invisible but that the built form is secondary to the natural setting. He argues that there is no unreasonable impact on views from public lands and that the desired future character is achieved.
Findings 79While the site is in a Flora and Fauna Enhancement area, there is no suggestion/ contention that there are any threatened species or communities on the site. There is no ecological evidence that considers any impact on specific local fauna or their habitats. 80The application itself does not propose the removal of trees other than those to be removed for the construction of a carparking platform for new Lot B and potentially fencing. However, as the lot will be for residential purposes, tree and vegetation removal on new Lot B will be inevitable should a dwelling be constructed. The proposed tree removal associated with a future dwelling on (new) Lot A remains unchanged. 81Given the existing extent of canopy cover, the control requiring that development shall result in no significant onsite loss of canopy cover or net loss in native canopy trees, is difficult to achieve on proposed new Lot B, or indeed, on any of the 2011 approved lots. 82In Miller 2011 the impact on tree canopy and loss of vegetation was a key contention. The council places some emphasis on the interpreted intent in that decision to specifically retain the band of vegetation across proposed new Lot B. The Commissioners noted the weedy nature of the vegetation near Barrenjoey Road and the better quality vegetation, in particular the canopy trees, being on the upper portion of the site. The condition requiring a VMP and bush regeneration addressed this. At [39] the Commissioners stated: 'The number of trees in itself is not the focus of the Court's attention but at the end of the day it is whether the proposed development satisfies the provisions of the DCP and design [sic] future character, which is clearly a landscaped area with native vegetation'. 83At [40] the Commissioners noted that both a quantitative and qualitative approach to assessing tree loss was required. At [41] they concluded that the vegetation management plan indicated an enhancement of the native vegetation on site that met the DCP requirement for 'no net loss of native vegetation'. 84From [42] to [47] the Commissioners' considerations can be summarised as:
Access 101The council's contention is that the applicant has failed to demonstrate a suitable off-street parking arrangement for the proposed additional lot, and adequate pedestrian access between the existing parking area and the and the proposed residential dwellings is not provided. 102The particulars include no demonstrated compliance with AS/NZ 2890.1-2004 in regards to the proposed parking area and for other users of the shared carriageway; lack of information about necessary access agreements; an extension of the inclinator not in accordance with the 2011 approval; works as executed not in accordance with the 2011 approval; no on-site parking; and failure to provide a Traffic Assessment Report. 103Several parts of the DCP apply. Of relevance is cl C4.2 Land Subdivision - Access Driveways and Off-Street Parking Facilities in P21DCP. The 'outcomes' are the safe and functional access for vehicles, cyclists and pedestrians as well as the provision of safe and convenient access for parking on each lot. The indicative dwelling shown on the plan would require two parking spaces (cl B6.5). Where an internal driveway is to be located within a Right of Way (ROW), the driveway is to be constructed as part of the subdivision works. 104Cl B6.4 Internal Driveways requires all driveways and ramps to be designed in accordance with the relevant Australian Standards. The controls also specify safety requirements, width, profiles, drainage and finishes. Relevantly, where an existing driveway is proposed to be used, the applicant must demonstrate compliance with the controls. 105B6.5 considers off-street parking. A large dwelling with two or more bedrooms requires two off-street spaces. On steeply sloping sites and those with high environmental value, the DCP allows car parking solutions to be negotiated for each site. Shared vehicular access is permitted where there is mutual agreement. Provisions for car parking on the steepest sloping sites may be waived subject to consideration of the merits of each case. 106Incline Passenger Lifts and Stairways are covered in cl C1.19. The required outcome is that incline passenger lifts (inclinators) and stairways are to cause minimal visual and acoustic disturbance to the environment and neighbours. They are to be designed and installed to be as close to ground level as possible with excavation and tree removal to be kept to a minimum. On steeply sloping existing lots, inclinators are preferred to driveways but must be assessed on merit. Inclinators will not be accepted in lieu of vehicular access for new subdivisions. 107The development proposes a parking pad off the western side of the existing driveway that provides two parking spaces for future occupants of new Lot B. Direct access to the new lot will be via the inclinator shown on the approved plans for the original Lot A in the 2011 consent. It is proposed that new Lot B will have reciprocal rights over the use and maintenance of the inclinator. Stair access is also required as alternative to the inclinator. The proposed inclinator is a 'Rail Glider' (details in Exhibit G).
Evidence - parking/driveway 108On site and in a further submission, Mr Vaughan Milligan, a Development Consultant, made submissions on behalf of the owners of 230 Barrenjoey Road who have a right of carriageway over the existing driveway. He stated that the surface levels of the driveway have been lowered and this makes access to his client's property difficult. He contends that adding the proposed parking platform for new Lot B will narrow the right of carriageway and make access even more difficult than it currently is. He submits that there is an opportunity to improve the access to allow for a single turning movement and that the current application will perpetuate an existing difficult three-point turn. On site, Mr Milligan acknowledged that there has always been a need to negotiate a three-point turn to enter/exit his clients' property. 109Mr Robert Varga for the applicant and Ms Englund for the council participated in joint conferencing and gave oral evidence. The experts agree that the proposed subdivision does not provide off-street parking on proposed Lot B and is therefore non-compliant with cl C4.2 which requires the design of each new lot to provide on-site parking. 110In Mr Varga's opinion, the provision of 2 off-street parking spaces meets the requirements of cl B6.5. 111In regards to the as-built parking platform, the previously approved plans nominated only a single RL of 57.5 and did not make any allowances for drainage or suitable transitions to the existing driveways to the south of the site. Mr Varga notes that the as -built platform is about 300mm lower than the point where the RL 57.3 is shown on the approved plans. He says the current arrangement was deemed to be the only practical way of accommodating the required stormwater drainage and necessary transitions in slope. He states that otherwise vehicles would have scraped and there would have been an unsafe drop on the upper western side of the driveway. In his view, the as-built platform achieves a better and safer outcome than the approved plans. 112Mr Varga opines that the 2011 approved plans anticipated a three-point turn. He has tested the turning area in a B85 vehicle and prepared swept path diagrams indicating that a large B99 vehicle can undertake a simple three-point turn in accordance with the requirements of AS2890.1. Mr Varga also notes that the proposed platform for new Lot B does not encroach onto the Right of Way that benefits the neighbours. 113Ms Englund maintains her opinion that the provision of parking is inadequate and inconsistent with the outcomes of cl C4.2 that requires provision of safe and convenient access and parking on each lot. She contends there is insufficient information as to how safe access is to be gained to a land-locked lot. She presses all elements of the council's contentions. 114Roads and Maritime Services (RMS) reviewed the application and raised no objections as they considered it unlikely to generate significant traffic on their road network.
Evidence - access - inclinator and stairs 115Although more detailed plans were provided in regards to the inclinator, formal access stairs from the parking area, and 'bush' stairs providing alternative pedestrian access beside the inclinator, Ms Englund maintains her concerns in regards to adequacy and safety. For example she stated that in her opinion, the alternative access stairs shown on the landscape plan would not comply with BCA requirements. There are sections with too many treads and the risers are not of a consistent height. She also expressed concerns over possible conflicts between the stairs and the inclinator. In her view, the applicants have not demonstrated safe access from the inclinator onto the parking platform. 116Mr Fleming stated that in his opinion the BCA is silent on the type of access stairs shown on the landscape plans but they provided safe alternative access that would not be in conflict with the operation of the inclinator. He stated that the Rail Glider is a customised product that complies with AS 1735.8 - 1986 SAA Lift Code Part 8 - Inclined Lifts. It does not require a pit for the motor and can come to ground level. Both side and rear doors can be fitted.
Submissions 117Ms Irish submits that the applicants have not demonstrated a suitable off-street parking arrangement for new Lot B, or adequate pedestrian access between the existing parking area and the future dwellings. She maintains that the proposal does not comply with the relevant clauses of P21DCP, in particular that safe and convenient access and parking be provided on each lot. Ms Irish presses the concerns of the other users of the right of carriageway. She asserts that the Court should prefer Ms Englund's evidence. 118Ms Staunton questioned Ms Englund's expertise and in regards to traffic management, and her interpretation of the BCA and inclinator standards. He contends that an easement for parking and access will be created to enable legal access for any future owner of new Lot B. He maintains that what is proposed, and detailed in Exhibits M and U, is an appropriate, alternative solution as envisaged by the DCP. In addition he submits that the formal access stairs from the car park to the top of the excavation, and the proposed Railglider inclinator, comply with the relevant standards. 119The parties' submissions on conditions relating to the as-built parking arrangements and the inclinator are discussed later in the judgment.
Findings 120It is clear that parking cannot be provided on new Lot B however cl B6.5 P21DCP enables alternative solutions for steeply sloping sites and shared vehicular access can be permitted. Clause C1.19 states that inclinators are preferred to driveways however inclinators will not be accepted on new subdivisions. 121In considering the access stairs and inclinator, the inclinator was anticipated in the 2011 consent and its location is shown on Lot A on the approved plans. There are no conditions of consent in the 2011 approval that specifically deal with the inclinator; approval is inferred as it is shown on the approved site plans. The application before me does not seek to construct the inclinator but rather to extend part of it to provide access to new Lot B. Providing an additional stop on an already approved inclinator does not seem unreasonable. The concept stair details show compliance with BCA requirements. The landscape plans in Exhibits T and U indicate that the construction of bush stairs is possible and will provide safe means of pedestrian access. 122Notwithstanding the fact that the existing parking area does not comply with the plans approved by the 2011 consent, from a practical point of view and with the benefit of the site inspection, I am satisfied that the common driveway can be negotiated in a safe manner. Pedestrians moving to or from the proposed parking platform for Lot B would be capable of seeing vehicles entering or leaving the right of way. The explanation of the reasons for the non-compliant levels, that is the need to provide drainage and to achieve the practical transitioning of the various entry and exit points, appears to be to be completely reasonable. If indeed it has avoided an unsafe edge on the western side, I would have to agree with Mr Varga that this might have achieved a safer outcome than strict compliance with the one level indicated on the 2011 approved plan. 123It would also appear from the evidence that other users of the right of carriageway have always had to negotiate a three point turn when entering or exiting their properties. I am satisfied by Mr Varga's swept path diagrams, that a large B99 vehicle can safely negotiate the right of carriageway. Therefore the proposal maintains the status quo. However, I agree with the parties that conditions must be imposed to prevent any obstruction of the right of carriageway. 124I find no grounds to dismiss the application on the basis of parking and safe use of the common driveway. Overall, I am satisfied that in the particular circumstances of the site, the proposal meets the essential outcomes of safe and convenient parking and safe and functional access for vehicles and pedestrians, albeit not on the actual lot, but reasonable by virtue of the variations allowed in P21DCP.
Other issues 125While not raised in council's amended Statement of Facts and Contentions, the planners in their supplementary joint report (Exhibit 16) discussed the implications of the relocation of the area of private open space from the west to the north of the indicative dwelling. 126Clause 1.7 Private Open Space in P21DCP requires, amongst other things, a minimum of 80m2 of private open space of which there must be a minimum principal area of 16m2 with a minimum dimension of 4m and a grade no steeper than 5%. It should be directly accessible from living areas and have good solar orientation. In some circumstances, a balcony located above ground level can also be included as private open space. 127Ms Englund is concerned that the new position will have an unreasonable impact on the amenity of the adjoining property to the north at 13 Bungan Head Road. The owner of that property made a submission to that effect when the amended plans were notified. She also considers that the proposed private open space will have inadequate visual privacy given the proximity of windows and decks on 13 Bungan Head Road; the closest deck being only 5m from the proposed area of open space. Similarly, she opines that the open space is likely to be overshadowed by that dwelling. 128Mr Fleming disagrees. In his opinion, the rear south-western portion of 13 Bungan Head Road is about 9.7m from the indicative landscaped area. He also notes that the dwelling at 13 Bungan Head Road is oriented to take advantage of its northerly aspect and the views to the north and that there is only a minimal setback of that dwelling across the common boundary.
Findings 129In this regard I accept Mr Fleming's evidence and his assessment of the orientation and setback of 13 Bungan Head Road. The amended plans show that the principal rear private open space of No 13 primarily adjoins Bushranger's Hill Reserve. Any direct overlooking from the rear yard of No 13 into the private open space of any future dwelling on proposed Lot B will be limited and mitigated by the installation of a fence and landscaping. Substantial canopy cover will be retained. Any specific privacy matters should be dealt with at the time a development application is lodged for any future dwelling. I also note that the indicative area of open space complies with the controls. The application should not be refused on this basis.
Conclusions 130After viewing the site, assessing the evidence, hearing the parties' submissions and considering the matters to be considered in s 79C(1) of the Act, I find that development application DA N0108/2013 for subdivision of one yet to be created lot into 2 lots at 232 and 234 Barrenjoey Road, Newport, and associated works, should be approved subject to conditions. 131A number of draft conditions of consent are contested. These are discussed below and summarised in paragraph [147].
Contested conditions - submissions and findings 132It is common ground that the as-built car parking slabs, retaining walls and manoeuvring areas do not accord with the plans approved in the 2011 consent. Both parties made submissions as to how this may be resolved; all options require the imposition of deferred commencement condition 1. 133The council contends that the applicant must submit a modification application pursuant to s 96AA to modify the 2011 consent so that the existing structures, extent of excavation and levels are approved consistent with the as-built development shown in level and detail survey Sheet 3 of 4, prepared by Stutchbury Jacques Pty Ltd, dated 7 November 2013. 134The applicants propose the same outcome but that the 2011 consent be modified pursuant to s 80A(1)(b) and s 80A(5) the Act and cl 97 of the Regulation; or, in the alternative, that a building certificate pursuant to s 149D of the Act be granted. 135While noting my comments in [122] of this judgment, in the circumstances I consider it reasonable for the applicant to submit a s 96AA modification application as requested by council. In my view this provides for a clearer process as the modification relates to an earlier consent. However, because of the need for an additional application to council, the timeframe for compliance with Part A of the conditions will be three years as requested by the applicant rather than the 18 months proposed by the council. 136Deferred commencement conditions 1-6 are as proposed by council in Exhibit 21. 137Part B: A(1) is amended to include the words 'plans A09 and A10 by Inscape' where indicated by the applicants' marked up version in Exhibit W. 138The applicants' proposed amendment to Part B- B(12) is not pressed. 139A significant difference between the parties is whether the Court should impose a condition of consent requiring the applicants to construct the inclinator and access stairs prior to the subdivision of the land. This is part of condition B17 in Part B. The applicants seek the deletion of the following portion: "The inclinator, stairs shown in the undated Concept Stair Detail and Section at scale 1:50, inclinator pathway and stairs in the access handle, and". 140Ms Irish contends that s 80(A)(1)(f) of the Act provides that a condition of consent may be imposed if it requires the carrying out of works relating to any matter referred to in s 79C(1) applicable to the development the subject of the consent. In addition, s 81A(3) makes separate and clear provision for a development consent that enables the subdivision of land to authorise the carrying out of physical activity in connection with the subdivision; which in her view could and should include the inclinator and stairs. 141Mr Staunton reiterates the applicants' position that the development application does not seek approval for the construction of the inclinator or access stairs. The purpose of the plans and drawings in Exhibits M and U as well as the proposed dwelling footprints and access points from the inclinator are simply to demonstrate that a dwelling, including access, can be provided on proposed Lot B in accordance with the requirements of cl B2.2 in P21DCP. Access to Lot B will be via a right of way over Lot A. 142After considering the submissions, I agree with the applicants' version of condition B-B(17). The applicants have not sought approval for the construction of the inclinator and stairs. The concept details clearly indicate that compliant access from the car park is possible and the inclinator and 'bush' stairs within the access handle are clearly anticipated in many other conditions of consent and on the plans. Given the time period over which the consent operates, and the time it may take to sell the lots, it is quite possible that there may be improvements in the design of inclinators. The applicants' choice may not meet the demands of the future purchasers of the newly created lots. Practical considerations of security and maintenance of an inclinator on a site where there are no occupants may prove difficult. Therefore, from a practical point of view the construction of the inclinator and stairs should be a component of any development application for a future dwelling on Lot A or new Lot B. 143However, to provide clarity and certainty to prospective purchasers of Lot A and new Lot B, there must be a detailed explanation of who is responsible, and, in general terms, the timing of necessary works. This could be incorporated into the s 88B Instrument referred to in condition F10 in Part B. 144As the applicants only propose the construction of the parking platform, they press the deletion of condition C24 in Part B. Given my findings on construction of the inclinator and stairs I agree with the applicants' version and this condition is deleted. No other changes to conditions in sections C, D or E are pressed. I note the applicants' suggestion that the portion of condition C20 dealing with revegetation of the western frontage of Barrenjoey Road could be a deferred commencement condition. As council does not press this, I propose to leave it as part of condition C20. 145I agree with the applicants that condition F3 be modified by deleting the words 'upstream properties' and replacing them with 'new lot/s the subject of this consent'. 146Condition F10 in Part B deals with the creation of easements and rights of way/carriageway. The applicants' alternative replacement condition is preferred and it should address the issue I raised in paragraph [143]. Reference should be included to the applicable plans A09 and A10. Similarly the applicants' replacement version of F15 is preferred. 147Summary of the changes made by me to the draft conditions of consent in Exhibits 21 and W [an electronic version of the applicants' marked up version has been edited to reflect the changes I have made] and now incorporated into Conditions of Consent in Annexure A:
Orders 148The Orders of the Court are: (1)The appeal is upheld. (2)Development Application N0108/13 for the subdivision of one yet to be created lot into two lots, including the provision of services, off-street parking and tree removal, at 232-234 Barrenjoey Road, Newport (Lot D DP367601 and Lot 5A DP 399973) is approved subject to the conditions in Annexure A. (3)All exhibits except 1, 21,A, B, E, M, R, U and W are returned.
Judy Fakes Commissioner of the Court ANNEXURE A 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. Decision last updated: 16 May 2014
Miller & anor
Pittwater Council