Land and Environment Court of New South Wales CITATION : Romeo, Guiseppe and Anna Maria v Pittwater Council [2007] NSWLEC 15 APPLICANT: PARTIES : Guiseppe and Anna Maria Romeo RESPONDENT: Pittwater Council FILE NUMBER(S) : 10200 of 2006 CORAM: Watts C at 1 Development Application :- View loss KEY ISSUES: Car parking provision Public/private interface Pittwater Local Environmental Plan 2001 (PLEP) LEGISLATION CITED: Pittwater 21 Development Control Plan, (DCP21) State Environmental Planning Policy No 65, (SEPP65) Environmental Planning and Assessment Act 1979, ss79C, 97, 107-8 CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140 DATES OF HEARING: 06/12/2006 and 08/12/2006 DATE OF JUDGMENT: 12 January 2007 APPLICANT: Mr P Tomasetti, barrister, instructed by D C Balog, solicitor SOLICITORS: LEGAL REPRESENTATIVES: DC Balog & Associates RESPONDENT: Mr A Galasso, SC, instructed by Ms K Arthur, solicitor SOLICITORS: Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 12 January 2007 10200 of 2006 - Guiseppe and Anna Maria Romeo v Pittwater Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Pittwater Council (the council) to refuse a development application to demolish the existing 'Pasadena' building and to construct new commercial, retail, restaurant space, six apartments with car parking, and to subdivide under strata title, all under existing use rights, at Lot 142, DP 752046, being No 1858 Pittwater Road, Church Point. 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 proposal would be satisfactory if Apartment 5 were deleted and the parapet lowered to conform with the height of the existing parapet in order to respect the views of nearby residents and deferred commencement consent is indicated. The land 4 The land is situated on the northern side of Pittwater Road and abuts land at Church Point wharf. Lot 142, DP 752046, being No 1858 Pittwater Road, Church Point is a freehold allotment owned by the Romeos. The largely rectangular lot has a frontage of 32.685m to Pittwater Road, a western boundary of 19.27m and the eastern boundary of 19.595m and an area of some 634.4m2. 5 Lot 320, DP 824048, also known as No 1858 Pittwater Road, Church Point, is an irregular shaped allotment to the north and east of Lot 142 and is held by the Romeos under lease No 311606, from the Crown. 6 Lot 317, DP 824048, being No 1858C Pittwater Road, Church Point, zoned 9(d) 'Arterial Road Reservation' and is owned by the Department of Lands. 7 Lot 319, DP 824048, being No 1860B Pittwater Road, Church Point, commonly known as 'Sir Thomas Stephens Reserve', adjoins Lot 142 to the west and is zoned 6(a) 'Existing Recreation'. 8 Lot 321, DP 824048, being No 1858B Pittwater Road, Church Point, adjoins Lot 320 to the east and is a reserve zoned 6(a) 'Existing Recreation'. 9 The existing 'Pasadena' is located on Lot 142, DP 752046 and is a predominately two-storey brick cement-rendered building containing a licensed restaurant with indoor and outdoor eating areas, bar and bottle shop, real estate agent and motel accommodation comprising fifteen (15) suites, caretakers flat and roof top laundry. Reading off the survey in Exhibit B it appears that the ground floor level of the existing building is 2.15m AHD; apparently, (as the noted levels are slightly indistinct on the survey before the Court) the first floor is 6.15m AHD, the roof level is 9.13m AHD, the ridge of the laundry on the roof level is 11.85m AHD and the gutter at 11.64m AHD. Mr Dunbar in Exhibit 7 states that the balustrade above the main structure is 10.1m AHD. This latter level is important when assessing the views from No 2195 Pittwater Road, the Soriano's residence. 10 The existing 'Pasadena' building was approved and constructed in the 1960s and provides a restaurant and shops at the ground level and a motel on the upper level. 11 The land is located within a key public precinct and may be viewed from the north and the waters of Pittwater. The council points out that Pittwater is an expansive waterway frequently used by the public, and located on a State arterial and tourist route. The land abuts Sir Thomas Stephens Reserve, the Church Point Wharf and Store where the 'offshore community' especially those living on Scotland Island meets and embarks. Relevant planning controls Pittwater Local Environmental Plan 2001, (PLEP) 12 Under the provisions of the PLEP the land is zoned 3(c) (Neighbourhood Business 'C'). There was no dispute between the parties that the applicant relies on existing use rights and those rights apply to the application. Any provisions of a planning instrument that derogate from those existing use rights is of no effect. 13 The land is within the vicinity of two (2) locally listed heritage items, being the adjacent Church Point Post Office and Store and a graveyard on the former Methodist Church Site opposite the land. The land is within the Bayview and Church Point Locality under the PLEP. Pittwater 21 Development Control Plan, (DCP21) 14 DCP21 also applies and ss D4.4, C 1.3, B4.6, 6.4, B2.6, C 1.7, D4.7, D4.5, D4.6 and D4.8 are relevant to the extent that they do not derogate from the incorporated provisions of any existing use rights regulations. 15 The Masterplan for Church Point adopted in principle on 20 December 2004 also applies to the land. The land is slip affected under Interim Geotechnical Risk Management Policy for Pittwater 21 DCP. It is also subject to wave action and tidal inundation under the Pittwater Wave Action Policy. 16 Other matters of relevance include: · Foreshore scenic protection area. · Habitat Category 2. · Native Wildlife Protection Area. · Saltmarsh foreshore vegetation. · State Environmental Planning Policy 71. State Environmental Planning Policy No 65, (SEPP65) 17 SEPP65 applies to the land and as the proposal exceeds three storeys the application must be assessed against the ten heads under that instrument. The proposal and its history 18 Development application No N0051/05 was lodged with the respondent council on 4 February 2005 to demolish the existing 'Pasadena' building and to construct new commercial, retail, restaurant space, six apartments with car parking on the land, and to subdivide under strata title, all under existing use rights. 19 The proposal described in the plans in Exhibit B prepared by Stutchbury & Pape – Architects, would include: Basement level – finished floor level of 0.30m AHD · Car parking for 12 resident vehicles, 2 visitor parking spaces and a designated wash bay. · Vehicular access ramp to ground level. · Lift access. · Storage Areas. · Amenities for the restaurant. External ground floor level – finished floor level of 2.45m AHD · Awning extending from the building to the north over the leasehold area comprising Lot 320 DP824048. · Terrace area on Lot 320 used for outdoor dining (50 seats). · Parking for 7 cars and loading bay provided adjacent to the eastern boundary of the lease area in the location of the existing motel car parking area. · Relocation of the residential and commercial garbage storage area within the lease area to the north of the access driveway. · Construction of the access driveway ramp within the leased area. · Construction of pedestrian access ramps within the lease area. · Construction of a podium and public seating area within Thomas Stephen Reserve (Lot 319, DP 824048 to the west). · Construction of pedestrian steps within the Pittwater Road reserve (Lot 317, DP 824048 on the southern side of the property) connecting the building with the footpath in Pittwater Road and the public car parking area. · Construction of an awning over the road reserve. · Use of the Church Point Reserve (Lot 321 DP 824048) for vehicular access to the basement car parking area, the car parking area contained within the leased area and the residential and commercial garbage storage area. Internal ground floor level – finished floor level of 2.50m (350mm higher than the existing ground floor level of 2.15m AHD) · 88-seat restaurant on free hold land, (with an additional 50 seats to be provided on the terrace on leasehold land). · 3 retail units. · Lift and stair access. · Amenities. First floor level – finished floor level of 6.20m AHD (apparently 50mm higher than the existing level of 6.15m AHD) · 2 x 2 bedroom and 2 x 3 bedroom apartments, (Apartments 1-4). · Lift and stair access. Second floor level – finished floor level of 9.5m AHD (450mm higher than the existing roof level of 9.15m AHD) · 2 x 2 bedroom plus study apartments, (Apartments 5 and 6). · Lift and stair access. Ridge level 12.785m AHD, 935mm higher than the ridge level of the existing laundry of 11.85. Skylight top 12.95m AHD; Lift overrun roof 13.10m AHD. 20 On 25 February 2002, Development Application N0431/01 for redevelopment of the land for 12 apartments with basement car parking was refused as the proposal was deemed prohibited development under the Environmental Planning and Assessment Act 1979. The applicant's appeal to the Land and Environment Court was withdrawn due to issues raised concerning the permissibility of the development. 21 Development Application N0550/02 was lodged on 4 July 2002 to demolish the existing building and erection of a four (4) storey mixed residential development containing nine residential units and basement car parking. 22 An appeal against the deemed refusal of that development application was lodged with the Land and Environment Court (Moore Development Ground Pty Ltd v Pittwater Council Proceedings No 10710 of 2002). The issue of existing use rights was considered separately in the appeal. In his judgment dated 29 May 2003 relating to the question of existing use rights his Honour Lloyd J concluded that 'land' for the purposes of clause 42(2)(b) of the regulations, was 'the entire building in question together with the land on which it stands'. More recently his Honour Talbot J decided that existing use rights apply to the whole of the premises. 23 On 26 September 2003 Pittwater Council refused Development Application N0550/02. After the determination of the question of existing rights, the appeal proceeded before this Commissioner and the appeal was dismissed and the application was refused on 17 October 2003. Notification 24 The application was notified to nearby owners and occupants on 23 February 2005, and the council received forty-two (42) objections. 25 Internal referrals were made to the Traffic and Streetscape Engineer; Development Engineer; Reserves and Recreations; Health officer; and Heritage Consultant. The council's decision 26 By notice dated 8 February 2006 the council refused the application for the following reasons, [Note: Exhibit 3 p 574]: 1. The proposal results in unreasonable view loss impact to the neighbouring dwelling sited at 2195 Pittwater Road, Church Point. 2. The proposal has not provided sufficient car parking provisions to address the likely demand for the development. 27 This followed a recommendation of the council's officers: THAT Development Application N0051/05 for demolition of the existing Pasadena building on the site and the construction of a shop top housing development comprised of basement car parking, restaurant, 3 retail units, and 6 residential units and associated works be refused because the proposed development results in an unreasonable impact on the views available from No 2195 Pittwater Road, Church Point. This is not in keeping with the requirements of Clause C1.3 or D4.4 of Pittwater 21 DCP and Section 79C of the Environmental Planning and Assessment Act . The hearing 28 The appeal was filed on 13 March 2006. 29 At the hearing the court heard evidence on 6 December 2006, on-site on behalf of the respondent council from local residents including: · Mr I Souter, resident of No 79 Florence Terrace, Scotland Island. Mr Souter is a member of the Scotland Island Resident's Association ("SIRA"). [Note: Exhibit 3, pp 278, 293, 294, and 297]; · Ms S Jones, President of SIRA. [Note: Exhibit 3 pp 191, 277, 285, 289 and 306]; · Mr G Roberts, member of SIRA who supported SIRA's submission, [Note: Exhibit 3 p 261]; · Mr F Makin, resident of Bayview - Church Point Residents Association Inc., who supported the proposal, [Note: Exhibit 3 p 217 and 304]; · Mr A Cullen, resident of No 38 Robertson Road, Church Point, [Note: Exhibit 3 pp 249 and 298]; · Mr F Soriano, resident of No 2195 Pittwater Road, Church Point, [Note: Exhibit 3 p 209]; · Mr A Yuille, resident of 3 Wirringulla Avenue, Elvina Bay, [Note: Exhibit 3 pp 205 and 287]; and · Mr P Purvis of Maskar Pty Limited, [Note: Exhibit 3 p 190]. 30 Also, on behalf of the respondent council Mr C E Hallam, traffic engineer, gave evidence that the proposed on-site car parking would be deficient, [Note: Exhibit A, Tab 7.2.1]. 31 On behalf of the applicant evidence was given by: · Mrs A M Romeo, owner and occupier of Pasadena, · Mr R K Dowsett, traffic engineer. 32 Mr G A Shiels, urban designer and town planner was the Court-appointed expert, [Note: Exhibits 5 and 6]. 33 Mr T Dunbar, Senior Development officer, Pittwater Council prepared the statement of basic facts dated 26 April 2006. The issues 34 On 10 November 2006 the council filed a further amended statement of issues, [Note: Exhibit 1]: View loss to the property at No 2195 Pittwater Road 1. The proposed development should be refused because it will result in view loss to the property at No 2195 Pittwater Road. Particulars (a) 2195 Pittwater Road currently enjoys a vista to Pittwater over the roof of the current Pasadena, framed by trees, and if the development proceeds, the view will be significantly impacted. (b) The proposed development does not meet the planning principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 in that the proposed development would: (i) impact on highly valued water views; (ii) the impact would be experienced from principal living areas; (iii) the impact would be significant; (iv) the development is not a 'reasonable' development, in that it expands the bulk and scale of a building that is already uncharacteristically large, particularly when the new upper floor is compared to the existing, less significant, structures at that level. It is this larger upper floor that causes the view impact on 2195 Pittwater Road; and (v) the development has not minimized its impact through its floor to ceiling heights, with a 2.8 metre ceiling height in the mid level and 3 metre ceiling height at the uppermost level. Controls: Clause D4.4 and C1.3 DCP. Inadequate car parking provision 2 The application should be refused because the development does not provide permanent on site parking for the retail and restaurant uses. Particulars (a) Council assesses that these uses generate a demand for 7 retail spaces and 53 restaurant spaces, in accordance with Pittwater DCP 21. (b) Church Point is subject to an acute parking shortage and the parking supply is already saturated overnight and at weekends, when the restaurant and (in respect of weekends) the retail uses would be generating their peak parking demand. The current parking demand characteristics are distorted by the use of the area by off shore residents and this must be taken into account in any parking analysis. (c) Council's Locality Plan for the Western Shore and Scotland Islands has identified resident parking as a critical issue, to the extent that it is seen to fundamentally limit any further subdivision in that area. The same Locality Plan identifies that, even without any subdivision, the permanent population and hence the parking demand of these communities is likely to increase. (d) Failure to adequately meet the parking demand generated by the proposed development on site will result in parking demand for the retail and restaurant uses being met in the adjacent public car parking area. This may be to the disadvantage of off shore residents and the general public who rely on this area for essential parking for commuter use and for recreational use of the public land and reserves at Church Point. (e) As the existing building is to be demolished, then in accordance with the principles established in Fodor Investments v Hornsby Shire Council [20051 NSWLEC 71, there should be no presumption that the established shortfall should be used as justification to provide a building of similar scale and parking demand as the existing building. A less intense use should be proposed that is more consistent with the parking able to be provided on the site. Controls: Clauses B6.5 DCP. RTA Traffic Generating Guidelines Conflict between residential land use adjoining Sir Thomas Stephens Reserve 3 The proposed development should be refused because there will be conflict between residential use and the community use of the adjoining recreational area, being Sir Thomas Stephens Reserve. Particulars (a) There is fundamental planning incompatibility between the aspirations of future occupants of the proposal for quietude and the public use of Sir Thomas Stephens Reserve as a public meeting place for off-shore residents. 35 The following emerged as the salient issues: · View loss · Car parking provision · Public/private interface The evidence and findings View loss 36 From both a sitting and standing viewpoint on the veranda and north facing living rooms the occupants of No 2195 Pittwater Road enjoy views towards Pittwater over the roof of the existing 'Pasadena'. On the site inspection staves had been erected on the roof of the existing building to the height of the proposal and assisted by these staves I was able to imagine the view impacts from various locations within No 2195 Pittwater Road. Trees frame much of the view from No 2195 Pittwater Road, however, that part of the water view towards the west over the western end and parapet of the existing Pasadena building would be largely lost if the proposal were erected. There are other water views from within No 2195 Pittwater Road; however, trees within the council reserve mainly screen these. So the water views that remain are highly prized. 37 The council contended that the proposal would not meet the planning principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 taking into account the importance of the existing view and the extent of view loss likely to be caused by the proposal from viewpoints in No 2195 Pittwater Road. The council contended that the proposal would: · impact on highly valued water views; · impact on those views experienced from principal living areas; and · those views are significant. 38 As a result, the council maintained that the proposal would not be reasonable, in that it expands an already uncharacteristically large building and blocks views. In particular, the new upper floor would extend past the line of the existing rooftop structures both in height and width and the larger uppermost structure would cause adverse view impacts on the residents and occupants of No 2195 Pittwater Road. 39 The council also maintained that the applicant has not sufficiently minimized the proposal's bulk and scale impact by lowering the proposed floor to ceiling heights. Taking into account this criticism of the design the applicant had amended the mid-level floor to ceiling height from 3.0m to 2.8m before the hearing commenced. 40 Mr Shiels, the Court-appointed town-planning expert, was also concerned that the proposal [Note: Exhibit 6] would unreasonably block views towards Pittwater from No 2195 Pittwater Road and prepared photomontages to assist in assessing the view impacts. 41 Mr Shiels suggested three options that would be available to the Court. The first was that the application be approved as proposed; the second was to modify the proposal by the removal of the top level and third to refuse the application. Despite his reservations concerning the height of the proposal and the built form relationship with the reserve and the local area he noted the design would be of high quality. 42 Mr Dunbar carefully analysed the height of the proposal compared with the existing 'Pasadena' and concluded, [Note: Exhibit 7] I disagree with the design architect's statement that the development, while being an existing use rights site, is "…largely compliant". The …degree and significance of the proposed building height's non-compliance with the relevant locality planning controls. The proposal has not resulted in a form of development that achieves what would reasonably be anticipated or expected for the subject site, in terms of building height. The design proposal, and more specifically the uppermost level units and their contribution to the building height and southern elevation as viewed [from] 2195 Pittwater Road, challenges the retention of reasonable view outcomes. In my opinion the building height and built form of the uppermost level, represents an unreasonable impact upon the existing views enjoyed [from] 2195 Pittwater Road and should not be approved without further height reduction. 43 Any height control that would derogate from the existing use rights provisions under the Environmental Planning and Assessment Act 1979, would not apply to the proposal and the resolution of view impact from No 2195 Pittwater Road is left to the Court's discretion having regard for the circumstances of the case. The ridge of the laundry roof of the existing 'Pasadena' is shown on the survey as 11.85m AHD and the proposed ridge over Apartments No 5 and 6 would be 12.785m AHD a difference of 935mm. The top of the balustrade at the existing roof level of 'Pasadena' is 10.1m AHD, [Note: Exhibit 7] and the proposed parapet level of the external wall of the proposal would be 10.5m AHD an increase in height of 400mm. The northwestern views of Pittwater from No 2195 Pittwater Road where there is a gap in the trees would be largely obscured by the extent of both Apartments 5 and 6 and in particular by Apartment 5 and by the elevated parapet height. 44 Having carefully weighed the evidence, I consider the height of the proposal to be excessive particularly at the western end and this could be improved by deleting Apartment No 5 and reducing the height of any solid parapet at the western end of the proposal to 10.1m AHD being the height of the existing roof parapet of 'Pasadena'. I have imposed deferred commencement Condition No 4 to achieve this result. 45 There is a standing water view from the veranda of No 2195 Pittwater Road over the laundry structure at the eastern end of the Pasadena and this would be lost were the proposal approved with Apartment No 6 retained. The roof of that apartment would be 935mm higher than the laundry roof and more extensive. Also, there are proposed skylights and lift overrun that exceed the height by 1100mm and 1250mm respectively. The applicant indicated that the reason for the additional height for the top floor of the proposal is that the building as a whole has been lifted to maintain the estuarine planning level is 2.5m AHD, however, the elevation of the building and view loss is mainly as a result of the floor to ceiling height of the top floor. 46 I accept that the sliver of water view over the top of the eastern section of 'Pasadena' is less significant in Tenacity terms than the view over the western section of roof and I would not require the removal of Apartment No 6 or refuse the development for reason of the view loss occasioned by that part of the proposal. 47 With Apartment 5 removed and the parapet lowered to 10.1m AHD and taking into account the setback from the main walls of Apartment No 6, I consider the view loss to be not unreasonable and the impact of bulk within reasonable limits. These setbacks from the parapet level of the main louvred walls of the proposal would be variously 15.5m from the west elevation; 6.0m from the northern elevation; 3.4m from the eastern elevation; 1.4m from the southern elevation. Whilst I acknowledge that the existing building is already bulky and uncharacteristically large, the architect has done much to disguise the bulk of the new and the design is of high quality. The sloping louvred walls are an inspired solution to the constraints of the land and allow for generous access for pedestrians around the proposal. Mrs Romeo assured the Court that Mr Stutchbury would be commissioned to complete the building were it approved and I consider this is important as the building is a focal point in this part of Pittwater and to be successful it should be well detailed. 48 With Apartment No 5 deleted from the plans and other height controls in place, I would not refuse the proposal for reason of its adverse impact on views or its bulk and scale. Car parking provision 49 Mr Hallam, traffic engineer, maintained that as it is proposed to erect a new building car parking should be adequate to cater for the needs of both staff and customers. He said the Court should not make allowance for the fact that the existing building does not provide any car parking and that the proposal would at least provide car parking for the occupants of the apartments in accordance with the council's code. He was also concerned that there is already a dearth of car parking available for customers of the 'Pasadena' and there is competition with off-shore residents who garage their cars in the abutting council car park. 50 Mr Dowsett, traffic engineer for the applicant took a different stance. He concluded: · The proposed development of the 'Pasadena' motel site will maintain the ground floor restaurant and commercial/retail components of the exiting development in keeping with Council's adopted draft Master Plan for the Church Point precinct while providing an increase in housing on a site with good access to public transport. · There will be a nett decrease in vehicle generation of the development of about 9 vehicle trips per hour in the peak hour or 1 less vehicle trips per 5-6 minutes. Translated to the road system the reduction in traffic will not be noticeable against the background traffic flows on Pittwater Road. · The proposed access arrangements will provide for the safe and efficient movement of vehicles between the site and Pittwater Road and generally meet the requirements of AS/NZ 2890.1 – 2004. · The parking provision, layout and servicing arrangements either exceed or meet the intent of the relevant design and numerical standards. · There will not be any adverse traffic, parking or traffic related environmental implications resulting from the development. 51 It transpired that the proposed vehicular ramp did not meet the AS/NZ 2890.1 – 2004 standards and I have imposed a condition to remedy that. I understand this would require that for a car parking area of the size proposed that at the top 6m of the ramp there would be a gradient of 1:20 with transitions and the slope of the main part of the ramp would be of no steeper than 1:5. 52 The council has assessed the car parking generation for retail and restaurant uses as 7 and 53 or 60 spaces and no car parking would be provided on-site for these uses. However, there is presently no on-site car parking for these uses that are presently taking place on the land. There is need also to provide carparking for the proposed residents of the apartments and these spaces would be provided in the basement. Messrs Dowsett and Hallam, [Note: Exhibit A Tab 7.2.1 Joint statement] agreed that: · The current parking overflow onto the public parking areas is 64 spaces. · With the proposed development this will become 53 spaces, and excluding parking on the leasehold area the proposed development would reduce parking demand when compared to the existing circumstances from 64 spaces to 53. · The existing restaurant and retail components rely on parking in the public parking areas of the adjacent reserve and on Pittwater Road and McCarrs Creek Road. With the 88m2 reduction in retail floor space the parking demand …will be reduced by some 4.4 spaces. · There will be no change in the parking demand for the restaurant. The parking demand will be reduced compared to the existing development. 53 With the deletion of one apartment, and reduction in the volume of the building as a result of providing a complying ramp, the car parking demand would be reduced further, but there would still be a deficiency based on the car parking requirements of a new building, however, I accept that because of the high water table it would not be practicable to provide any additional car parking on-site. The uses have been historically part of Church Point and should continue to operate. 54 Despite the deficiency in car parking when calculated for a new building, as there is an overall reduction in parking demand, I would not refuse the application for reason of any lack of car parking. Public/private interface 55 I consider Mr Stutchbury has designed a building that would clearly distinguish between private and public interface. He has provided a public walkway around the point to the north of the land that is separated from the leasehold land. The raised 'public terrace' extending into the Thomas Stevens Reserve might well be used as a dining area and arrangements would need to be made with the council for this use in much the same way as footpaths are used for outdoor dining. When not used for seating associated with the use it would be available to the public. By including louvres in the design of the walls of the proposal has defined the two realms well. I would not refuse the application for reason of a diffuse public/private interface. 56 For the above reasons, the appeal is upheld. Conditions 57 The conditions are those in Exhibit 13 as amended during the hearing and otherwise. In particular I have imposed deferred commencement Condition No 4 that would require the deletion of Apartment No 5 and the lowering of the parapet to retain some of the views towards Pittwater over the roof of the proposal from No 2195 Pittwater Road, Church Point. 58 The ramp to the basement car park would need to be redesigned to meet the requirements of AS/NZ 2890.1 – 2004 and deferred commencement Condition No 5 addresses that. Orders 59 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No N0051/05 lodged with the respondent council on 4 February 2005 to demolish the existing 'Pasadena' building and to construct a shop-top housing development as defined in Pittwater Local Environmental Plan 1993 at Lot 142, DP 752046, being No 1858 Pittwater Road, Church Point is approved subject to deferred commencement Conditions 1 to 5 and after these conditions are satisfied Conditions A1 to F1 in Annexure A. 3. The exhibits except for Exhibits B, F, 1, 2, 8, 13, 15 and 16 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.