Warrawee Securities Pty Limited v Pittwater Council [2006] NSWLEC 206 | Case summary

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Pittwater Council (the council) of a development application to demolish the existing single-storey dwelling on the land; to erect six (6) two-storey, self-contained dwellings over a basement carpark, under the provisions of State Environmental Planning Policy-Seniors Living, (SEPP-SL) at Lot A, DP 377157, being No 1 Riverview Road, Clareville. 2 I visited the land in company with the parties on the morning of the hearing and heard from local residents. 3 I have concluded that the application should fail as a result of the excessive site coverage and the consequent lack of a landscaped setting in the context of the low-density residential area in Hudson Parade west of Ruskin Row. The land 4 The land is situated on the northwestern corner of the intersection of Riverview Road and Hudson Parade, opposite the intersection of Hudson Parade and Hilltop Road. The land has an area of 1,943.6m2 and is occupied by a single-storey detached dwelling located towards the Riverview Road frontage of the land. Diagonally across the intersection is a local shopping strip. 5 The land is irregular in shape with a frontage to Riverview Road of 26.815m; to Hudson Parade (southern) of 49.715m; a northern boundary, common with No 3 Riverview Road, of 67.3m and a rear western boundary, common with No 22 Hudson Parade, of 48.55m. 6 The character of the locality is described as primarily low-density, single-storey and two-storey dwellings in a natural landscape setting under Part A4.1 of the Pittwater 21 Development Control Plan, (DCP21). Relevant planning controls Pittwater Local Environmental Plan 1993, (PLEP) 7 Under the provisions of the PLEP the land is zoned Residential 2(a) (Residential 'A') and the proposal is permissible with consent under the provisions of State Environmental Planning Policy-Seniors Living, (SEPP-SL). State Environmental Planning Policy-Seniors Living, (SEPP-SL) 8 SEPP - SL that replaced the earlier SEPP5, was gazetted 16 December 2005. Under s 2(1) it aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. 9 Under s 2(2) of SEPP - SL these aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors all people with a disability for developments on land adjoining land zoned primarily to open purposes. 10 Under s 31 of SEPP - SL the proposed development should: (a) recognise the desirable elements of the location's current character (or, in a 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. (b) … (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights on the street frontage that are compatible and scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of boundary walls on neighbours, and (d) be designed so that the front building of the development is setback in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting the streetscape, and (f) retain wherever reasonable, major existing trees, and (g) … Pittwater 21 Development Control Plan, (DCP21) 11 DCP21 applies to the subject land. Draft Pittwater 21 Local Environmental Plan - Geotechnical Risk Management Policy for Pittwater, (Draft P21) 12 Draft P21 is under consideration by the council. The proposal and its history 13 Development application No 262/2005 was lodged with the respondent council on 19 May 2005 to erect six dwellings under SEPP-SL. 14 It is proposed to demolish the existing single-storey dwelling on the land, the associated structures (being carport, storage shed, outside toilet and shower shed); to erect six (6) mainly two-storey self-contained dwellings over a basement carpark containing sixteen (16) car parking spaces, four (4) of which are visitors' spaces under the provisions of SEPP-SL. Dwelling No 1 is in part three-storeys in height. 15 Each dwelling would comprise at least three (3) bedrooms and be provided with two (2) dedicated parking spaces accessed by a private internal lift access. Additionally, Dwellings No 4-6 would be provided with a library/ study room. Dwelling No 1 would be provided with a library and guest room at the basement level. Dwellings No 1-3 would have a study on the lower level, adjacent to the secondary bedrooms and Dwellings No 4 and 6 have a study/ work area on the living level. Dwellings No 1-3 and 6 would have plunge pools within their courtyards. The development would be serviced by a centrally located lift, giving access to and from the basement carpark. Notification 16 The application was notified, to nearby owners and occupants and the council received fifty-one (51) submissions. An advertisement was also placed in the 'Manly Daily' on 9 June 2005. 17 The application was referred to the Council's Engineer, the Departments of Natural Resources and Health on the 9 June 2005. The Council's Arborist, Access Consultant and Traffic Committee were also notified. The council's decision 18 When the appeal was filed the council had not yet determined the application. On 5 December 2005 The hearing 19 The appeal was filed on 2 August 2005 and is a deemed refusal. 20 At the hearing the court heard evidence on behalf of the respondent council from: · Ms L Haidhari, town planner, Pittwater Council; · Mr Ron and Barbara Van Es, residents of No 7 Riverview Road, Clareville, [Note: Exhibit 5, pp 25 to 28]. · Mr Les Beckenham, resident of No 19 Riverview Road, Clareville, [Note: Exhibit 5, pp 37-8]. · Ms Prue and Peter Hock, residents of No 31 Riverview Road, Clareville, [Note: Exhibit 5, pp 41-45]. · Mr Graham Bland, resident of No 33 Riverview Road, Clareville, [Note: Exhibit 5, p 46]. · Mr Alan Lawrence, resident of No 4 Hilltop Road, Clareville, [Note: Exhibit 5, pp 69-70]. · Mr David Lyle, resident of No 124 Riverview Road, Clareville, [Note: Exhibit 5, pp 78-9]. · Ms A Hymes, resident of No 18 Eloura Road, Clareville Beach, [Note: Exhibit 5, p 85]. · Ms Marita McCrae, for the Avalon Preservation Trust, [Note: Exhibit 5, p 96]. · Ms Kim Bolitho, seeking protection for Koalas, [Note: Exhibit 11] · Mr Ian Rae, resident of No 52 Hilltop Road, Clareville. 21 Mr R J Chambers, consultant town planner was the Court-appointed expert. Mr P Castor, arborist, was the Court-appointed tree specialist. 22 On behalf of the applicant Mr Dickson, architect of the proposal, gave evidence. The issues 23 On 2 March 2006, the council filed an amended statement of issues. Inadequate Information 1 Inadequate information has been submitted to enable assessment of the development application, including, elevation diagrams to demonstrate solar access to each of the dwellings proposed. Height 2 The proposed buildings are too high given the height of buildings in the locality and the height controls, which apply. Particulars (a) Clause 38(4)(b) of State Environmental Planning Policy (Seniors Living) 2004 ("SEPP SL"). (b) Clause 38(4)(c) of SEPP SL. Solar Access 3 Inadequate solar access has been provided for dwellings 1, 2 and 6. Particulars (a) Clause 33 SEPP SL. (b) Clause C1.4 Pittwater 21 Development Control Plan ("DCP").

24 The following emerged as the salient issues: · Height · Solar access · Neighbourhood amenity and streetscape · Excessive site coverage · Tree loss, and · Landscaping The evidence and findings Height 25 The council contended that the proposed buildings would be too high given the height controls under cll 38(4)(b) and (c) of SEPP - SL and in the context of the height of buildings in the locality. 26 Under the SEPP - SL single storey development is required in the rear 25% of the land. There was some dispute between the parties over how the rear 25% should be determined. Mr Dickson at the site meeting informed those present that for the purpose of determining setbacks Riverview Road was chosen as the 'front'. Thus the rear for the purposes of determining setbacks would be the western boundary of the land common with No 22 Hudson Parade. However, other evidence suggested that the rear 25% should be located in the northwestern corner of this corner parcel of land. 27 I am satisfied that it would be reasonable to apply the front and rear used by Mr Dickson to determine setbacks in order to identify the 'rear' for the purpose of determining the rear 25% of the land. It was agreed that Dwelling Nos 2 and 3 are two storeys in height and Dwelling No 1 is three storeys in height. Dwellings No 1, 2 and 3 all would be within the rear 25% and should be single storey if they were to comply with the requirements of SEPP - SL. By this method all three proposed western dwellings would not comply with the height limit under SEPP - SL as they are greater in height than the height of a single-storey dwelling. 28 Even if I were wrong in determining the 'rear' as above, the calculation of the rear 25% and the diagonal method were used instead, Dwelling No 3 would be within that area and would not comply with the height limit under SEPP - SL. 29 The applicant prepared State Environmental Planning Policy No 1 - Development Standards objections (SEPP1), dated 14 October 2005, to both the height standard and the 25% rule, [Note: Exhibit J and Exhibit 2, Appendix 8]. Given the applicant is content to limit the height of Dwelling No 1 to two storeys only the SEPP1 objection to the 25% rule would need be entertained were the Court to consider the application favourably. 30 The applicant justified the breach of the height limit on the basis that as the natural ground level slopes down towards the west, the height of the western buildings would not alter were the space under the ground floor utilised for habitable space. There is some strength in this argument as the ground floor is fixed by the slope of ramps for disabled use at a grade of 1:14. At Dwelling No 1 the down ramp to the entry is at a grade of 1:20, so the level of that unit might be lowered slightly, however, this modification would not bring about a significant lowering of the floor level of that dwelling unit. 31 Mr Chambers the Court-appointed town-planning expert, was content that in the circumstances of this case, that the SEPP1 objection to the height of buildings in the rear 25% of the land, was well founded and compliance with the height standard would be unnecessary or unreasonable. 32 Were the application found otherwise to be satisfactory generally, I would not refuse it for reason of excessive height in the rear 25%. 33 Dwelling No 1 is three storeys in height, and during the hearing the applicant indicated that it would prepared to delete from the application the third level which contained a library. The applicant also agreed to delete from that level the second storey bedroom. I consider this amendment of the plans would be beneficial, as by the deletion of this storey, the elevation in Hudson Parade would step with the land slope down towards the water and would diminish the impact of development when viewed from the street. 34 This change would, I am satisfied, bring the proposal into greater fit with the locality. However, I consider that although this would go some way to harmonising the development in its context it would not be sufficient. Some reduction in the site coverage is also required. Neighbourhood amenity and streetscape 35 The council was concerned that the proposal would represent "…an inconsistent bulk and scale presence forward of the established front building line to Hudson Parade and [would be] inconsistent with the clear single occupancy dwelling character in the vicinity of the site." The council referred to cll 31 of SEPP - SL, D1.4, D1.8, A4.1 of DCP21 to support its case in this regard. 36 My overall impression of the proposal, leads me to find that there is force in the council's argument. I consider that in its context the proposal would be excessive of bulk and scale. My reason for coming to this conclusion is based on a number of factors including, lack of landscaped area, proximity of development to the streets, building under the drip line of the remaining trees, the need to provide private open space close to the street alignment and the need for fences to enclose these spaces in locations where in this low density residential area such elements are foreign. 37 The council was also concerned that the proposed front fence would be uncharacteristic in the locality and contrary to the provisions of DCP21 and in particular cl D1.16. The plan of the fence as now sought by the applicant is shown in Exhibit N. 38 Mr Chambers considered any approval of the fence premature without information concerning access for native animals including bandicoots and Koalas. 39 I agree with the council that the character of the proposed front fence which included masonry walled sections would be inappropriate. I consider it would detract from the landscaped ambiance of this part of Avalon, in Hudson Parade west of Ruskin Row. Also the masonry walls would require construction that would be likely to adversely impact on the existing trees. 40 The council was also critical of the proposal, which it claimed would result in a loss of visual privacy to properties at No 22 Hudson Parade and No 3 Riverview Road. The provisions referred to by the council in support of this were cl C1.5 of DCP21 and cl 32 SEPP - SL. 41 There is no objection from the owners or occupiers of No 3 Riverview Road and the owners of No 22 Hudson Parade withdrew their objection prior to the hearing. The applicant argued that there would be sufficient separation or screening to ensure that privacy of these properties would be maintained. I accept that evidence and would not refuse the application for this reason. 42 The council claimed the proposal would have inadequate rear and side setbacks under cl D1.9 of DCP21 that contributes to the impression of bulk in the low-density residential context. If by this the council includes the side setbacks to Hudson Parade I agree. 43 I consider the application should fail for reason of inadequate setbacks from Hudson Parade and Riverview Road and for its excessive site coverage. Excessive site coverage 44 The council maintained that the proposal would be in breach of the site coverage requirements of the local planning controls in particular cl D1.14 of DCP21 and in excess of that, which is characteristic in the area. Mr Chambers confirmed that DCP21 would require site coverage or built upon area for a single dwelling, of 40% of the site area and the proposal would have a 48% built upon area. 45 These site coverage requirements are to be used as a guide to future development of the area, the character of which is described as "primarily low-density, single-storey and two-storey dwellings in a natural landscape setting." The present application under SEPP - SL should fit in with the present and future character of the area. 46 Mr Chambers was asked whether the proposal would be out of keeping in its context and he answered that it would be "[g]enerally consistent with the character statement." He considered the proposal to be not overbearing in terms of bulk, scale and height. 47 Despite Mr Chamber's evidence to the contrary, I accept the council's submission and consider the proposal would cover too much of the land, destroy the natural landscape setting, and as a result would not fit well in its context. I refuse the application for this reason. Tree loss 48 The council was concerned that the proposal would result in an unacceptable loss of highly significant trees and the application has not demonstrated reasonable retention and protection of significant existing vegetation. It maintained that the application would breach cll B4.1, B4.6 DCP21 and cl 31 SEPP - SL. 49 The proposal is to erect the six dwellings under and near the existing trees on the land and would require as originally proposed the removal of trees T1, T4 and also T1A. 50 Mr P Castor, arborist, suggested that T2, a gum growing in the NE corner of the land to the north of the proposed new driveway to the basement car park, that the applicant intends to retain, should be removed in the interests of safety. In giving evidence he answered the question in the affirmative, "Given the cut [for the driveway to the basement] that tree is unlikely to survive?" He said, "I could not sign off on the stability of the tree." However, he indicated satisfaction with the separation of the remaining trees from the development and that these remaining trees would maintain health and vigour, were the proposal erected. 51 A perusal of the plans shows that some of the dwellings are under the drip line of the remaining trees. Despite Mr Castor's confidence that these trees will survive the construction process, it is quite likely that future residents, for safety reasons, possibly after obtaining approval of the owners' corporation, and with the approval of the council under its tree preservation order, might seek the removal of some of these trees. In the interests of their survival, it would be prudent for any development to be constructed clear of the drip line of all remaining trees. If the proposed dwellings were setback further from Riverview Road and Hudson Parade, outside the drip line of the retained trees, the site coverage also would be reduced, the landscaped area would be increased, and a natural landscaped setting would be provided for the proposal. This would create a greater sense of landscaping predominating over built elements than as presently proposed and would bring the proposal into closer harmony with the present and likely future character of the area. Landscaping 52 The council was concerned that the species proposed on the landscape plan are inappropriate and called for compliance with cl C1.1 of DCP21. Given the evidence of Mr Castor, I am satisfied that this issue may be dealt with by appropriate conditions of consent. 53 The council was also concerned that there would be insufficient landscaping to adequately screen the proposal when viewed from neighbouring properties and the public domain. The deficiency in the landscaped area and of landscaped setting, needs to be addressed by fundamental changes to the plans that cannot be conditioned. 54 Mr Castor was content with the imposition of Condition No 15 that requires the existing landscaping on survey to be retained. He considered this condition would be effective to protect and maintain the hedge along the northern boundary and provide privacy for the occupants of No 3 Riverview Road. He did not oppose the removal of trees T1, T4, T2 and also T1A. 55 Mr Castor was content that with the mirror imaging of the proposed pool and deck of Dwelling No 3, those works would be outside the drip line of tree T10 and its health and vigour would be adequately addressed. 56 He sought a condition that the location of the pipeline be removed from trees T5 and T6 and that it should be located in the 'line of best fit' between those trees. 57 Mr Castor was satisfied that with the elevation by 400mm of the floor levels for Dwellings No 5 and 6 pier and beam construction would enable the roots of tree T5 to be protected. 58 Mr Castor was also satisfied that with the lift well removed from the basement and no penetration through the slab, tree T5 would be able to survive as the former excavation in its root zone has been eliminated. [Note: Exhibit 1, p 7] 59 Conditions were proposed to address Mr Castor's concerns. 60 Mr Chambers had originally sought a minimum 2.5m setback from the northern boundary of the land to enable augmentation of the landscaping by tree planting in this area. He indicated that the setback had been increased to 2m for two parts limited in length to 4m or 5m of the northern façade of the development. Elsewhere, he accepted that a setback of 2.5m has been achieved along the north. He was content that the breach of the setback line was "…not a significant non-compliance with the council's requirement." 61 During the proceedings the applicant agreed to setback by 2.5m the upper storey of Dwelling No 4 to provide for a greater separation with the existing or future dwelling on No 3 Riverview Road and to permit greater canopy space. I consider this a reasonable compromise. 62 I would not refuse the application for reason of inappropriate landscaping. It is only the extent of that landscaping that of concern for me as explained above. Solar access 63 The council was concerned that there would be inadequate solar access provided for Dwelling Nos 1, 2 and 6 as required by cl 33 SEPP - SL and cl C1.4 of the DCP21. 64 During proceedings the applicant provided the Court with more detailed shadow diagrams, [Note: Exhibit K], which proved that 70% of the units in a development would receive sunlight in midwinter for around 3 hours between 9.00am and 3.00pm. In particular Dwellings Nos 1 and 2 because the living rooms are on the first floor, are provided with skylights and are separated both in elevation and plan have been demonstrated to meet the standard. 65 Mr Chambers was satisfied the solar access requirements of SEPP - SL would be met by Dwellings No 1, 2, 3 and 6. He considered that Dwelling Nos 4 and 5 closest to Riverview Road would be impacted by the shade of the existing hedge on the common boundary with No 3 Riverview Road. He suggested that this hedge be reduced in height by trimming. I accept the evidence of Mr Chamber concerning the adequacy of solar access to the development. As a result, I would not refuse the application for this reason. Resident concerns 66 Mr and Mrs Van Es, were concerned that vehicular access and egress to their property at No 7 Riverview Road, Avalon, would be adversely impacted upon by likely increased traffic flows in and near the subject land were approval granted to the proposal. Mr Van Es stated that when the speed and volume of traffic in Riverview Road and Hudson Parade is taken into account, if approval were granted to the application, safety would be prejudiced. He said that there is a large Eucalyptus growing in the council verge that restricts sight distances to the north of the proposed entry point. He was concerned that motorists would have difficulty in seeing traffic against the glare of the setting sun and this would only add to the safety problems. He was sure that if traffic flows at the intersection could be improved it would be much safer. 67 Although he had no objection in principle to the proposal Mr Van Es suggested that if vehicular access to the basement car park on the land could be provided in Riverview Road and egress out on Hudson Parade the traffic environment would be much safer. Safety would also be improved were the council to realign Hudson Parade and Hilltop Avenue. 68 Mr Beckenham, who had come to the area in 1970, said that he had seen many changes in Avalon over the years. He said that he and his family appreciated the natural environment and that it is a "…beautiful spot to live." He said that he was prepared to travel to work, just to have peace and serenity when he returned home. He was concerned that the pleasant ambiance of Avalon is under threat by development such as that proposed. He pointed out that the council had advised only the immediate owners of the proposal despite only 50 letters being sent out, the council received more than 50 written objections from local resident objectors and special interest groups. 69 Mr Beckenham said that when the council considered the application, the building committee had rejected it. He said, "…If this is passed [news of the decision] will spread like bushfire." Clareville Beach will be under threat and "I could do the same at Stokes Point." 70 Mr Beckenham suggested that the proposal might satisfy certain SEPP-SL requirements but there would be still a traffic problem. 71 Mr Hock stated that his Grandfather had come to Avalon to look after the golf course, and lived in the house on the subject land from 1955 to 1970. He made a plea for intergenerational equity and pointed out that people would oppose any development that ignores or threatens the character of the area. He said that there has been a steady decline of gum trees over the years, mostly taken away by development. He expressed the view that the "…trees that we love cannot live side by side with development." He considered it appropriate to ensure that development is only approved giving a separation from trees of 5m. 72 Ms Hock stated that the Riverview Road, Hudson Parade, Hilltop Avenue intersection is "…a dangerous corner." "If you slam brakes on, you are right in the line of fire." In the future "…if motorists are turning right, their manoeuvre is complicated by need to stop for cars entering the proposed car park." The intersection is so heavily used there "…might be need of traffic lights." 73 She questioned the provision of, …only 16 spaces, for six - three bedroom dwellings, with only four spaces for visitors. [She asked,] "…where will the friends, workers and delivery people park? Given the location of the pedestrian crossing this part of Riverview Road will be zoned no-standing. Then where will taxis stop? Where will there be garbage collection? Hudson Parade not safe for car parking. Amenity greatly diminished for local residents. Trees can't survive. Bulk and scale clearly out of character and will challenge all principles of local planning. The bloke next door could choose [to develop his land for] Seniors Living. We are the custodians of this lovely environment and must fight against opportunistic development. 74 She quoted a few lines from a popular song, "…paved paradise and put up and parking lot." 75 Mr Bland said that he had been in the area since 1981. He said the main problem is that there would not be enough parking for visitors if the proposal were erected, and as a result visitors would have to park on the street. Riverview Road is not wide enough and there is overflow into shopping area, and it is not wide enough to service this development. He said there is a danger when people are making turns and those making right hand turns are likely to be 'T' boned, unless a roundabout or lights are installed. 76 Mr Lawrence said, I support the intelligent statements of others. I consider that town planning is looking into the future to make some plan that an area can follow in its development. This is pulling the town planning after it. Left over bits of rubbish, left over after development. A developer is looking at the site next door. Site after site [will be] turned to flat development. Small gaps between development [will be left]. Clareville will have no trees and will become a sea of flat-roofed, architecturally-designed places. Roads will have to take 5 or 6 times the amount of traffic. Broaden the roads and lose the trees. These issues should be faced before development is contemplated. Bus runs over toes [as it is] so close to the shelter. Holds up all the traffic and causes disruption. Minimum is a lay-by for the buses. If that were to occur, traffic will be within metres to this development and substandard. [This is a] ghetto in the early stages. [Site notes] 77 Mr Lyle, was concerned for the adverse impacts of this development under SEPP-SL. He said, …he was a builder and working for local government. Buses to Avalon. 20 minute trip. 192 drops in at Hudson Parade. No footpath. Transport difficulties exist. Shops in Hilltop cross two busy roads. Pedestrian crossing shown. [In the past such a proposal was] Every time turned down. Lack of sight lines. Exceeds 1:14 for access for disability. No footpaths on Riverview Road or Hudson Parade. Greatly exceed the limits. This does not comply with the intent. [Site notes] 78 Ms Hymes, represented the Pittwater Residents Against Inappropriate Development, (PRAID). She said that her objection was based on the siting of development in an area where presently, there is no medium density development. The result of development of this kind would be an adverse effect on the tree scape of the area she said. She pointed to the importance of Issue 1, which related to the "…effect on existing and likely future character of the area." The character of the area she stated was made up of "…varied low-key dwellings in large gardens with very large indigenous trees." She said, "The trees are most important, as this is the western edge of the Pittwater Spotted Gum Ecological Community, (PSGEC)." The Spotted Gum, she said is a Koala feed tree. So also, is the Grey Iron bark. She said the proposal is "…on the corner of this …iconic group of trees, that were outstanding elements in the streetscape and pre-date European colonisation." She said, "All the trees are at risk and all should be retained as habitat and food trees and shelter for birds and animals." She stressed also the need to retain these trees for aesthetic and stability reasons. 79 The proposal she said, should fit in with the current character. She referred to a decision of Commissioner Hoffman who had refused a SEPP-SL development at Nos 111-113 Avalon Parade citing s 31(a) of SEPP-SL [Note: para 10 above] as a reason for refusal, [Note: Avalon DA Pty Limited v Pittwater Council [2006] NSWLEC 125]. If this present development causes the loss of trees then it is wrong, she said. 80 She was also concerned that the proposal would be cited as a precedent for further development - intruding into an area of single dwellings. She said that there are properties on other corners that are open to development. She was concerned that as the shops on the opposite corner are changing hands, that site would be open to development and character of the area would be changed. 81 Ms Hymes also sought to emphasise the traffic issue. She had never seen anyone use the pedestrian refuge because it is unsafe. She said that she took issue with Mr Chambers that this is an ideal site. 82 Ms Hymes, considered the site to be prominent, when viewed from the water. She said, "…if we can see Pittwater then it [the proposal] can be seen." She said that a Kurrajong tree was removed prior to the development application being submitted to the council. She said, "…there were also markers of Aboriginal settlement and this area is of significance." 83 Ms Hymes, said that the proposed landscaping would be "…out of keeping with surroundings and there is no room to replace trees." She pointed out, "…new residents would prefer views to trees, and asked that the Court refuse the DA." 84 Ms McCrae, of the Avalon Preservation Trust objected in July and indicated, "No modifications [of the plans] would change our view, expressed in the original objection." Her concerns included the adverse effect of the proposal on the remaining trees on the site. She said it was an "…overdevelopment of the site." She said that in the preamble to Seniors Living policy it is stated that this type of "…housing should be in keeping with the neighbourhood character of the area." This proposal has not achieved that. This might be the beginning of further development and the area would be completely changed. The proposal, she said "…would be contrary to the objectives of Pittwater 21 DCP of maintaining trees on hilltops. We believe this should be refused." 85 She asked rhetorically in respect of traffic: "Why encourage more people of over 55 to cross Riverview Road." 86 In respect of trees, she said they "…have an enormous root system comparable to branches." Although in the short term the trees on the land might survive the development, "In the long term all trees will go." 87 Ms Bolitho showed a video explaining the need to preserve habitat for koalas. She said that the population of Barrenjoey Koalas had reduced by 89% since 1988, and as a result the remaining koalas are vulnerable to extinction. She said, "We have planted trees for the six koalas remaining." She said there have been "…accounts of koalas in the immediate area including Angophora Reserve." She had received handwritten reports of sightings in Chisholm Parade." 88 Mr Rae, said there was a need for adopting a "holistic approach" to planning. 89 In answer to some of the concerns of the residents, I accept the conclusion of the traffic report by Colston Budd Hunt and Cafe, on behalf of the applicant and that the traffic issues should not be a reason to refuse the application. Many residents were concerned for traffic safety however, I am satisfied that the entrance to the proposed basement car park has been designed to facilitate movement of vehicles in and out of the car park with little or no adverse impact on traffic within Riverview Road or at the nearby intersection. I would not refuse the application for reasons associated with traffic impact. [Note: Exhibit C] 90 I also accept the access assessment report by Mr M Relf, access consultant that the proposal has been designed in accordance with the requirements of SEPP - SL and that bus stops are accessible. [Note: Exhibit D] 91 I accept the evidence of local residents that the proposal is not appropriate in the low-density residential context, west of Ruskin Row. 92 For the above reasons, the appeal is dismissed. Orders 93 My orders are:

The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

Warrawee Securities Pty Limited v Pittwater Council

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Judgment (15 paragraphs)

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Cases Cited (1)

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