Land and Environment Court of New South Wales CITATION : Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310 APPLICANT Lipman Properties Pty Ltd PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10973; 10974 of 2009 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- for Seniors Living and subdivision; Threatened species - whether likely adverse impact and whether SIS required; Whether proposal consistent with desired future character of area; overdevelopment of site; draft LEP; precedent; public submissions. Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995 Roads Act 1993 (NSW) LEGISLATION CITED: Rural Fires Act Strata Schemes (Freehold Development) Act 1973 Environmental Planning and Assessment Regulation 1994 Warringah Local Environmental Plan 2000 Draft Warringah Local Environmental Plan 2009 Warringah Development Control Plan BGP Properties v Lake Macquarie City Council [2004] 138 LGERA 237 Retirement by Design v Warringah Council [2007] 153 LGERA 372 Mete v Warringabh Council [2004] 133 LGERA 420 CASES CITED: Beacon Hill Retirement Pty Ltd v Warringah Council [2010] NSW LEC 1011 Newcastle and Hunter Valley Speleological Society v Upper Hunter Shire Council and Stoneco [2010] NSW LEC 48 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Motorplex (Australia) Pty Ltd v Port stephens Council [No.2] [2007] NSWLEC 770 16 - 18 June 2010 DATES OF HEARING: 2, 8 - 9 July 2010 Updated advice received 22 and 23 December 2010 DATE OF JUDGMENT: 30 December 2010 APPLICANT Mr C J Leggat (Senior Counsel) with Mr N Eastman (Barrister) SOLICITOR LEGAL REPRESENTATIVES: G P Cummins & Co RESPONDENT Mr J Robson (Senior Counsel) SOLICITOR Wilshire Webb Staunton & Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 30 December 2010 Appeal No's : 10973 of 2009 and 10974 of 2009 Lipman Properties Pty Ltd -v- Warringah Council JUDGMENT 1 The applicant in these proceedings is seeking consent for a seniors living development on land at Beacon Hill in the local government area of Warringah. The site is about 2.6 hectares, known as No 8 Lady Penrhyn Drive and No 70 Willandra Road. The aerial photographs at figures 1 and 2 show the site in its broader and narrower contexts of adjoining residential subdivisions and the bushland of the Oxford Falls Valley Locality. 2 Appeal No. 10973 of 2009 is in respect of the proposed development for 32 self-contained dwellings in groups of 4 dwellings. Associated facilities include an amenities building containing a meeting room, gym, swimming pool and recreation facilities; car parking for residents and visitors; landscape and bushfire hazard management works. The application also proposes that the land be subdivided into two Torrens title lots with the smaller lot of 2064 sq m for the existing dwelling that is to remain on the site. The larger lot of some 22,000 sq m is proposed to accommodate the housing for older people and this is proposed as a under strata title scheme. Figure 3 shows the site development plan. 3 The associated appeal of 10974 2009 is for the development application to construct a vehicular driveway and pedestrian access path on an unmade road to provide access from Lady Penrhyn Drive. THE SITE AND ENVIRONS 4 The subject site is an irregular triangular shape surrounded on two sides by streets and road reservations. The site for the proposed buildings is Lot 806 in DP 752038 and the unformed public road to provide access is Lot 12, DP 729342. 5 The adjoining residential subdivision and Council owned reserve at Red Hill is to the west and the residential areas of Beacon Hill are to the south and east. To the north the long boundary of the site adjoins undeveloped bushland. The National Parks are approximately 3 km north and southwest of the site. 6 Currently there is a brick and tile dwelling on the northwest portion of the land with access from Lady Penrhyn Drive. The existing dwelling is sited on the high portion of the land and the topography drops sharply away to a leveled area that has been cleared of vegetation and used for earth supplies. A large part of the land contains native vegetation and rock outcrops. 7 The site slopes from west to east and incorporates a number of naturally formed sandstone terraces at intervals across the site and native trees are interspersed amongst native heath. The general area has varied topography from gently sloping to relatively steep with escarpments and ridges and that part of the site proposed for the seniors living is significantly below the existing dwelling house and is more gently sloping and below the ridgeline. THE PROPOSAL 8 The proposed development is described in more detail in the Statement of Facts as follows: + 32 self contained dwellings for use as 'Housing for Older People Or People With A Disability', provided in a cluster of 8 detached buildings, each comprising four dwellings of 2 - 3 bedrooms (category 2 development) pursuant to the Warringah Local Environment Plan 2000 ("WLEP 2000"); + A common amenities building comprising a multi purpose meeting room, gym, toilets, kitchen swimming pool and deck area; + Car parking comprising 56 resident spaces (a mix of I and 2 parking spaces per dwelling) and 10 visitor spaces; + Landscape and bushfire hazard management works; + Pedestrian access ramp from proposed units to Lady Penrhyn / Willandra Road intersection over Council's unformed road reserve, and + New vehicle access internal road connecting Willandra Road and lady Penrhyn Drive. + Retention of the existing dwelling and 4 associated car parking spaces; + Torrens title subdivision of the site into two allotments and a strata subdivision of the larger lot are also proposed. Background 9 The Warringah Development Assessment Panel deferred the application pending receipt of additional information including a Species Impact Statement. In September 2009 the Council forwarded a letter to the applicant advising of a number of concerns associated with the proposal and additional information sought included: * Species Impact Statement (Section 5A and Section 79B of the Environmental Planning & Assessment Act 1979) * An ecological site management plan be prepared and submitted. * An analysis of how the proposed development will affect local core habitats and specifically addressing the issues related to the loss of connectivity between these habitats should be incorporated into the environmental assessment. * Vehicular Access * Car Parking access ramps cross grades * Wheelchair Access To Community Building * Wheelchair Access On Access Pathway to Willandra Road * Pathway over Council land (Owners Consent) * Site Elevations * Clause 59 / Schedule 11 of Warringah LEP 2000 (Koala Habitat protection) * Site Capability Certificate for Seniors Development * House Density - Concurrence Required 10 The applicant submitted a Species Impact Statement (SIS) in December 2009 and other information, however, the application remains undetermined by the council and these proceedings are on the basis of a deemed refusal. The applicant appeals under the provisions of s 97 of the Environmental Planning and Assessment Act (EPA Act). 11 The development is for integrated development requiring referral to the NSW Rural Fire Service pursuant to s91 of the EPA Act. In February 2010, the RFS issued its General Terms of Approval, requiring the imposition of certain conditions. STATUTORY PLANNING FRAMEWORK Warringah Local Environment Plan 2000 (WLEP 2000) 12 The development application was lodged as a Seniors Living development under the provisions of Warringah LEP 2000 and does not rely on the State Environmental Planning Policy 'Housing for seniors or People with a Disability'. 13 The site is located in the B2 Oxford Falls Valley Locality (B2 Locality) under the WLEP 2000. The relevant provisions of this LEP include Clause 12(3)(b)--Desired Future Character (DFC) and for the B2 Locality this is described as follows: "The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows. Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridge tops or in places that will disrupt the skyline when viewed from Narrabeen lagoon and the Wakehurst Parkway. The natural landscape including landforms and vegetation will be protected and, where possible, enhanced Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged. A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape. Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its Catchment and will ensure that ecological values of natural watercourses are maintained. " 14 The proposed development falls under the definition in the dictionary of the LEP (C1.6 of WLEP 2000) as 'housing for older people or people with disabilities' and this means: ' ... residential accommodation which is or is intended to be used permanently as housing for the accommodation of older people or people with disabilities, whether or not it is also used to accommodate people who live with older people or people with disabilities, or staff who are employed to assist in the administration of and provision of services to such housing. Housing for older people or people with disabilities may consist of a residential care facility, a hostel or a grouping of 2 or more self-contained dwellings, or a combination of these, but does not include a hospital or a group home.' 15 Under the B2 Locality Statement 'housing for older people or people with disabilities' and 'housing' are identified as a Category 2 development. 'Subdivision' is also identified as Category 2 development (Clause 14). 16 Clause 12(2)(b) requires the consent authority before granting consent must be satisfied that the development will comply with the development standards set out in the Locality Statement. Clause 12(3)(b) requires the consent authority to be satisfied the development is consistent with the desired future character described in the relevant Locality Statement but nothing in the description creates a prohibition on the carrying out of development. 17 Appendix B to the LEP contains the Locality Statement for the B2 Oxford Falls Locality. In this section of the LEP Housing density is under Built Form Controls and the maximum housing density is 1 dwelling per 20 ha of site area, except : (a) where this standard would prevent the erection of one dwelling on an existing parcel of land, being adjacent or adjoining land held in the same ownership on 8 March 1974 and having a combined area of not less than 2 ha, and (b)……… (c) on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of "housing for older people or people with a disability" and the development complies with the minimum standards set out in clause 29. However, consent may be granted for development that will contravene these housing density standards but, if by more than 10 per cent, only with the concurrence of the Director. The matters which shall be taken into consideration in deciding whether concurrence should be granted are: (a) whether non-compliance with the development standard in issue raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by this plan. To measure housing density: * the site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent) is divided by the number of dwellings proposed on the site, including any existing dwellings which are to be retained, * the site is the allotment which existed on the day this plan came into effect, and * granny flats are not considered to be a dwelling and are limited to one per allotment. 18 In the B2 locality there are a number of other provisions in the LEP as follows: o Building Height "Buildings are not to exceed 8.5 metres in height where height is the distance measured vertically between the topmost point of the building (not being a vent or chimney or the like) and the natural ground level below. Buildings are not to exceed 7.2 metres from natural ground level to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas located wholly within a roof space), but this standard may be relaxed on sites with slopes greater than 20 per cent within the building platform (measured the base of the walls of the building), provided the building does not exceed the 8.5 metre height standard, is designed and located to minimise the bulk of the building and has minimal visual impact when viewed from the down slope sides of the land. " o Front building setback The minimum front building setback to all roads is 20 metres. The minimum front building setback area is to be densely landscaped using locally occurring species of canopy trees and shrubs and be free of any structures, car parking or site facilities other than driveways, letterboxes and fences. o Rear and side building setback The minimum rear and side building setback 10 metres. The rear and side setback areas are to be landscaped and free of any structures, car parking or site facilities other than driveways and fences. " of land that can be included as landscaped open space is 1 metre. " 19 The Schedule 7 in the LEP contains matters for consideration in the subdivision of land and this is called up by cl 21(3) where the proposed subdivision is to be consistent with same. This schedule relevantly includes: Environmentally sensitive/constrained land 1) In areas subject to constraints such as flooding, tidal inundation, subsidence, slip, bushfire or any other risk, adequate safe area for building, where the risk from hazard is minimal, is to be provided within an allotment. The minimum building area being the area available for a dwelling house and car accommodation is to be free from all constraints. 2) Lot boundaries should relate, where possible, to natural land features such as creeks and escarpments. 3) The subdivision potential of land that may be subject to subsidence or slip is limited. A geotechnical report should be submitted with all proposals for subdivisions in such areas. The level of investigation necessary may be different for varying conditions, namely, scale of development, slope and geological conditions and whether or not sewerage is available for connection. Subdivision should be designed to minimise the risk from land subsidence. 4) Subdivision of flood prone land should be avoided. Bushfire New Subdivision should be designed to minimize the risk from potential bushfire. Asset Protection Zones identified in a bush fire risk management plan in force under the Rural Fires Act 1997 should be contained with the property boundaries of the new subdivision. 20 There is no issue raised by the respondent and in my assessment the proposed subdivision is consistent with all the matters set out in this schedule. 21 Clause 29 of the LEP relevantly includes matters that relates to: On what grounds can applications for housing for older people or people with disabilities not be refused? (2) Consent for development for the purpose of housing for older people or people with disabilities cannot be refused on the grounds of: (a) building height: if all proposed buildings are 8 metres or less in height when measured vertically from any -point on the ceiling of the topmost floor of the building to the ground level immediately below that point, or (b) density and scale: if the density and scale of the buildings, when expressed as a floor space ratio is: (i) 0.5:1 or less, except as provided by subparagraph (ii); or (ii) 0.75:1 or less, for hostels and residential care facilities located within 400 metres walking distance of a public transport node ... or (c) landscaped area: if a minimum of 35m 2 of landscaped area per dwelling and … (d) parking: (e) visitor parking: if, in the case of development that comprises less than 8 dwellings and is not situated on a clearway, no visitor parking is provided within the development, or (f) landscaped areas: if, in relation to that part of the site (being the site, not only of that particular development, but also of any other associated development to which this clause applies) that is not built on, paved or otherwise sealed, there is soil or a sufficient depth to support the growth of trees and shrubs on an area (preferably located at the rear of the site) of not less than the width of the site multiplied by 15% of the length of the site, or… 22 There is no issue and the proposed development complies with the above requirements. 23 Clause 40 of the LEP contains provisions for access to support services as follows: Development for the purpose of housing for older people or people with disabilities must provide residents with adequate access to: (a) shops, banks and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner. Wheelchair access: Development for the purpose of housing for older people or people with disabilities must comply with the following access standards: (a) site gradient: (i) if the whole of the site has a gradient of less than 1:10, 100% of the hostel or residential care facility beds and 100% of the dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents, or (ii) if the whole of the site does not have a gradient of less than 1:10, a percentage (which is not less than the proportion of the site that has a gradient of less than 1:10, or 50%, whichever is the greater, and which in this subparagraph is called the specified minimum percentage) of any hostel or residential care facility beds and the specified minimum percentage of any dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents, and (b) road access: at least 10% … of any dwellings which meet the requirements of paragraph (a) must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road, and (c) common areas: access must be provided so that a person using a wheelchair can use common areas and common facilities associated with the development, and (d) adaptability: … 10% - of any dwellings which meet the requirements of paragraph (a) must also have, or be capable of being modified so that they have, wheelchair access by continuous path of travel (within the meaning of AS 1428) to all essential areas and facilities inside the hostel, residential care facility or dwellings, including a toilet, bathroom, bedroom and a living area. 24 Other principles and standards are contained in Schedule 16 to the LEP. These are not in issue and the proposal satisfies these detail design requirements. 25 Clause 56 refers to retaining unique environmental features on sites: Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land. In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses. 26 Clause 57 - Development on sloping land On sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised and the need for cut and fill reduced by designs, which minimise the building footprint and allow the building mass to step down the slope. In particular: the amount of fill is not to exceed more than 1 metre in depth; and fill is not to spread beyond the footprint of the building; and excavation of the landform is to be minimised. The geotechnical stability of sloping land to support development is to be demonstrated. Consent must not be granted for development involving the erection of a structure, including additions to an existing structure, on land identified as being potentially subject to landslip on the Landslip Hazard Map unless the consent authority has considered a report from a suitably qualified engineer as to the geotechnical stability of the land to support such development and an assessment of stormwater prepared by a suitably qualified hydraulic engineer. 27 Clause 58 - Protection of existing flora provides that: Development is to be sited and designed to minimize the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species. Draft Warringah Local Environmental Plan 2009 (Draft WLEP 2009) 28 The site is proposed by the council to be zoned E3 Environmental Management under the Draft Warringah Local Environment Plan 2009, (Draft LEP) which has been the subject of public exhibition. Seniors Living development is prohibited development in the E3 zone. This zone also sets a minimum subdivision standard of 1 dwelling per 20 hectares 29 The council referred the plan in late June 2010 to the Department of Planning for its making. The draft LEP is modelled on the Department of Planning's template. The savings provision within the draft plan states under cl 1.8A is: "if the development application has been made before the commencement of this plan in relation to land to which this plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan had not commenced." 30 The E3 Environmental Management Zone contains the following objectives: - to protect manage and restore areas with special ecological, scientific, cultural or aesthetic values. - to provide for a limited range of development that does not have an adverse effect on those values. - to ensure that development, by way of its character, design, location and materials of construction, is integrated into the site and natural surroundings, complements and enhances the natural environment and has minimal visual impact. - to protect and enhance the natural landscape by preserving remnant bushland and rock outcrops and by encouraging the spread of indigenous tree canopy. - to protect and enhance visual quality by promoting dense bushland buffers adjacent to major traffic thoroughfares. 31 Development that is permitted with consent includes dwelling houses, community facilities, home businesses, horticulture, recreation areas and aquaculture. Prohibited development includes industries, multi dwelling housing, residential flat buildings, retail premises; and seniors housing. 32 The definition of seniors housing under the draft LEP means residential accommodation that consists of a residential care facility or a hostel or a group of self-contained dwellings or a combination of these that is intended to be used permanently for seniors or people who have a disability ... but does not include a hospital. CONTENTIONS 33 The full Statement of Contentions is at attachment 1. The respondent in submissions summarized these as that contained in contention 7. 7. Overdevelopment of the Site Having regard to the contentions raised above, the proposed development represents an overdevelopment of the site summarised as follows: (a) Inconsistency with the Desired Future Character (b) Non compliance with the housing density standard (c) Impact on threatened species (d) Environmental impact of the development (e) Non compliance with the subdivision standard (f) Strategic considerations Evidence and submissions 34 The Court met on site the first morning of the hearing with the parties and the objectors to the proposal. An extensive site inspection was carried out of the subject land, and a wider inspection of the area. 35 The Court heard from a number of resident objectors to the proposal and the Court also has copies of submissions received in respect of the development being advertised. The objectors concerns include that the proposed development will change the locality, and it will have a dramatic impact on views. Another concern relates to the effect of precedent for other developments. Concern was also expressed that the environment would not be protected by the proposed development and the proposal does not comply with current thinking and understanding of the environment. A further concern articulated by the objectors is that the site provides a wildlife corridor and contains swamps with the natural high water table, and that the proposed development would lead to run off and flooding, weed infestation and edge effects. 36 Concern was also expressed about road kill and the impact of fires and the fact that bandicoots and other wildlife may be present on the site, including the square tailcoat kite, feather tailed glider and sugar gliders. The Court also heard of the need to evacuate people in the time of bushfires that move very quickly through the area. Concern was also expressed about the gradients being too difficult for older people to walk to the bus stop. 37 Other objectors also made comments concerning the overall context of Oxford Falls and the lagoon catchment that has great biodiversity. In particular, it was pointed out that the development would be prohibited under the new Draft Local Environmental Plan. It was also pointed out that the Narrabeen Lagoon catchment has 27 in native vegetation communities with 11 threatened and 8 not represented in national parks. The objectors considered the site to be a jewel of rare diversity. Concern was also expressed about the translocation of the Pimelea Curviflora is on the subject site, which will lead to a decline in biodiversity, because the prospects of its surviving translocation are difficult. 38 It was repeated that the proposal was not consistent with the desired future character of the area. The proposal would have a high bushfire risk and remove core habitat areas. The proposal was seen by the resident objectors as an over development of the land and not consistent with the aims and objectives and the proposal would have adverse environmental impacts. The possibility of the subject site being within range of four known species of is cicadas was also raises a concern. 39 The comment was made that with urban consolidation this requires in exchange and retention of bushland open to the community. 40 Concern was also expressed about the destruction of rock outcrops on the site, as well as habitat and bushland because of the area required for the asset protection zone. Comment was also made about the Aboriginal site that was on the subject band. 41 For the respondent council expert evidence was provided by Ms Teresa James, botanist and ecologist; Mr Rod Rose, bushfire consultant and fire ecologist; Mr Anthony Powe, landscape architect; and Mr Ryan Cole town planner. On behalf of the applicant's evidence was provided by Dr Anne Clements, restoration ecologist; Mr Ian Cady, consultant town planner; Mr James Koopman; Mr Rohan Dickson, architect urban designs; and Mr John Travers, consultant ecologist and bushfire consultant. Assessment and findings 42 In closing submissions the respondent summarised the issues as: inconsistency with the desired future character of the locality: housing density: unacceptable impact on the Pimelea; unacceptable environmental impact because the site is environmentally significant and modification to 90% of the site is proposed; substantial non-compliance with the subdivision standard; and strategic planning considerations including the draft Warringah Local Environmental Plan which would prohibit development for seniors housing. 43 The above appear under contention 7 in attachment 1. This provides a copy of the Council's Statement of Contentions to which I have assessed. As in many cases before this Court a number of contentions are either resolved by further information or conferencing of experts. For example the issues of a watercourse and the heath monitor are no longer pressed. 44 The respondent submits that with the various issues considered individually or together, it is apparent the development would result in gross over development. Threatened Species - Pimelea Curviflora (PC) 45 I first deal with this contention because it is a threshold matter in my consideration of the proposed development. 46 The Environmental Planning and Assessment Act 1979 at s78(8) provides that a development application must be accompanied by: (b) If the application is in respect of development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats -- a species impact statement prepared in accordance with division 2 of parts 6 of the Threatened Species Conservation Act 1995. 47 Section 5A of the Act states: 1. The purposes of this Act, and in particular in the administration of s78A ... the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. 2. The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction; or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction, (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed; and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action; and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. 48 The above matters are often referred to as the 7 part test and the ecologists Ms James and Dr Clements both provided a 7 part test that became exhibits 15 and L in the proceedings. 49 I acknowledge that there was confusion during the proceedings because just prior to the hearing commencing it was revealed that there had been a misidentification of the Pimelea on the adjoining council reserve that changed the assessment process because the local population is now confined to the 3 plants found on this site 50 There was also confusion as to whether the 3 plants could remain in-situ because Dr Clements maintains that being in dumped material then it could possibly be contaminated, although as submitted by the respondent there is no scientific evidence or reports to support this. And the experts agreed that translocation should only be carried out as a last resort if the area surrounding the plants is found to have a level of contamination requiring removal. Ms James in her evidence said that the lateritic soils where the Pimelea is located could be the occurrence of a clay lense in the Lambert soil landscape which she says are not uncommon. Dr Clements, on the other hand, says that there are signs that the site has been disturbed in the area where the Pimelia is located and referred to the dumping of material, including bins and extensive tracks. Ms James says that the typical habitat is sandy soil derived from sandstone or clay lateritic soils over sandstone on ridges or upper slopes in open woodland or open forest. This description does not apply to the location of the Pimelea on the subject land which is mid slope in woodland heath complex. 51 However, I accept Ms James' evidence that it is no consequence as to whether these plants are in lateritic fill that was dumped on the subject site, the fact is, the 3 plants must be considered as the local population. And the presence of the 3 Pimelea must be considered as a local population and must be assessed subject to the provisions of the relevant acts. 52 Dr Clements says that the lateritic outcrops generally occur on ridge tops and plateau surfaces and the site is on a mid slope, and she considers the Pimelea is likely to have been introduced in soil dumpings and that the chances of survival are not high with the do nothing scenario as a result of the existing management of the site and the extent of disturbance and degradation of the site is likely to increase over time. In her opinion, the impact would be mitigated because of the design of the road in the bioswales and water treatment regime proposed with the development. 53 Ms James agreed there is fill on the top part of the site but down slope vegetation is in good shape with few exotics on site. Furthermore, she said that clay lenses occur in sandstone and this is not an issue or problem, and in her opinion the proposed development will result in the removal of habitat from the site and this will also lead to a lack of connectivity and isolation and edge effects. 54 A description of the Pimelea Curviflora is provided on the New South Wales Threatened Species website and is referenced in the BMP as follows. The photograph in Figure 7 shows the species. Description A much-branched subshrub or shrub 20 to 120cm high with hairy stems. Flowers are red to yellow, hairy and occur in terminal heads of 4 - 12 flowers. Leaves are 5 - 10 mm long, 2 - 4 mm wide, with a sparsely hairy lower surface. The curved fruit is 2 - 4 mm long. Location and habitat Distribution Confined to the coastal area of Sydney between northern Sydney in the south and Maroota in the north-west. Former range extended south to the Parramatta River and Port Jackson region including Five Dock, Bellevue Hill and Manly. Habitat and ecology * Occurs on shaley/lateritic soils over sandstone and shale/sandstone transition soils on ridgetops and upper slopes amongst woodlands. * Flowers October to May. * Has an inconspicuous cryptic habit as it is fine and scraggly and often grows amongst dense grasses and sedges. It may not always be visible at a site as it appears to survive for some time without any foliage after fire or grazing, relying on energy reserves in its tuberous roots. * Likely to be fire tolerant species capable of resprouting following fire due to the presence of a tap root. Seedlings have been observed following fire. Regional information This species is found in the following catchment management authority regions. * Hawkesbury/Nepean * Sydney Metro Threats * Habitat loss due to clearing for urban development. * Habitat degradation due to for example, weed invasion, recreational activities, road and trail maintenance, and bush rock removal. Recovery strategies Priority actions are the specific, practical things that must be done to recover a threatened species, population or ecological community. The Department of Environment and Conservation has identified 7 priority actions to help recover the Pimelea curviflora var. curviflora in New South Wales. What needs to be done to recover this species? * Introduce measures to prevent habitat degradation related to unrestricted access and/or trail maintenance. * Manage weed infestation. * Protect areas of known and potential habitat from clearing and further fragmentation. References * Benson, D. and McDougall, L. (2001) Ecology of Sydney plant species. Part 8. * Harden, G.J. (ed.) (2000) Flora of New South Wales Vol. 1. UNSW Press, Kensington, NSW. * NSW Scientific Committee (1998) Pimelea curviflora (a small shrub) - Vulnerable species determination - final. DEC (NSW), Sydney. 55 His Honour, Preston CJ sets out the requirements of a 7 part test and SIS in the matter of Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 as follows: 81…. The requirements for a SIS flows from s78A(8)(b) of the EPA Act which requires that a development application must be accompanied by a SIS if the application is in respect of development on land that "is likely to significantly affect threatened species, populations or ecological communities, or their habitats". The requirement is a jurisdictional fact; satisfaction of the requirement is an essential pre-requisite to granting consent to an application. If a SIS is required, but it has not been prepared, then consent cannot be granted… 82. A number of point may be made about this requirement. First s 78A(8)(b) focuses on the development proposed in the development application; the inquiry is whether the "development" in respect of which application is made is likely to significantly affect threatened species, populations or ecological communities or their habitats An application can, of course, be amended after it is initially lodged. . The development proposed , therefore , may be amended. The relevant time for the inquiry is immediately prior to the determination of the application; it is the development as it then stands that is to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats… In this case, therefore, the inquiry must focus on the development as it finally stood at the conclusion of the hearing of the appeal. 83. Secondly, the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impact of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measure must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards… 84. Thirdly, the word "likely" means "a real chance or possibility" and "significantly" means "important", "notable", "weighty" or "more than ordinary"… 85. Fourthly, in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the consent authority and the Court on appeal must take the factors in s5A of the EPA Act into account and in particular the factors in the now seven part test in s5A(2). However, the consent authority is not limited to consideration of these factors; there may be facts and circumstances relevant to the inquiry which are not specifically contained in any of the factors in the seven part test. 86. Fifthly, a positive answer to any one or more of the seven factors does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats but equally does not preclude a negative answer to the question. 94. The concept of "local " occurrence is not a defined term; rather it is an English word that will take its meaning from the circumstances of the EEC concerned and its distribution, extent, fragmentation and other spatial characteristics. 100… In its current form, s5A(2)(c) requires evaluation of the likelihood of removal or modification of an area of an EEC placing a "local occurrence" of the EEC at risk of extinction. 101. Hence, the evaluation conclusion in cases considering the former s5A(c) using the regional distribution of the habitat of an EEC may not assist in making the evaluation judgment required under the current s5A(2)(c) which uses the yardstick of local occurrence of the EEC. 102. Such a comparison with the regional distribution of an EEC is no longer appropriate for the purposes of s5A(2)(c). The comparison would need to be with the local occurrence of the EEC. 104. A mere quantitative comparison of the area of the EEC to be removed or modified with the area of the local occurrence of the EEC, however, may not be sufficient by itself to evaluate the likelihood of removal of modification of the area of the Eec placing the local occurrence on the EEC at risk of extinction. Other factors may need to be considered and a qualitative analysis undertaken. 104. (d) the viability (or conversely the vulnerability) of the local occurrence of the EEC and the proposal's likely adverse effect on or modification of this viability (or vulnerability), having regard to its location, size; shape, configuration; fragmentation; isolation or connectivity; condition; threatening processes; and other factors; and 104. (e) the cumulative effect of the proposal with other existing and likely future actions; and 104. (f) the existence and likely effectiveness of ameliorative measures proposed including compensatory habitat or offsets of the EEC concerned in or adjoining the area of the local occurrence of the EEC. 113. Application of the seven part test has resulted in negative answers to the three applicable factors. However, as noted previously, whilst consideration of the seven part test is required in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the seven part test is not the only input into determining the question. Other relevant factors can be taken into consideration. 115. Another factor that might be relevant is ameliorative measures which reduce the significance of the adverse impacts on the EEC. In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council proposals for amelioration for the loss of CPW were advanced, but in the circumstances of the pas Pain J did not consider that a proposal to reafforest a nearby area was ameliorative. 116. The present case differs from BT Goldsmith in a number of respects. First, the extraction area will be rehabilitated so that at the end of the extraction and rehabilitation phases both the habitat and community will be present in some form. Secondly, the conditions proposed by Stoneco and the Council contain provisions for the implementation of management plans designed to ensure the enhancement and maintenance in perpetuity of EEC in the Project Site. These plans allow for ongoing review and adaptive management. These conditions provide sufficient assurance that the adverse impacts of the proposal will be ameliorated such that the overall assessment under s5A is of no significant impact so that no SIS is required. 117. In contrast to BT Goldsmith , in Nambucca Valley Conservation Association v Nambucca Shire Council , Biscoe J accepted the proposed ameliorative measures would be practical, enforceable and effective, so that the proposed development with the ameliorative measures was not likely to significantly affect the EEC concerned. 118. In conclusion, therefore, I find that the proposal is not likely to significantly affect the White Box EEC and a SIS in not required. 56 The Pimelea Curviflora is listed as a vulnerable species under both the New South Wales Threatened Species Conservation Act 1995 and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 57 The 3 plants located on the subject site constitute a small local population occurring within a defined study area. A local population was described by Ms James as plants that could reasonably be expected to cross pollinate with those in the study area. 58 Ms James describes the population to be a viable population that is, it has the capacity to successfully complete each stage of the life cycle under present conditions, and the plants are sufficiently mature to produce flowers and fruit. She states that the plants occur within normal habitat of the species as described below: "Typical habitat: sandy soil derived from sandstone, or clayey, or lateritic soils over sandstone on ridges or upper slopes in open woodland or open forest; occurring in coastal areas of northern Sydney and in the north west of Sydney between Glen Haven and South Maroota (based on DECC and DEWHA profiles)." 59 Dr Clements assumes for the purposes of the 7 part test that: - cuttings of the plants are to be used for propagation by a specialist nursery to increase long-term survival of genetic material on this site; and - the plants are to be protected in-situ unless contaminated material is found near the plants with additional planting of tube stock grown from cuttings in the landscaped area surrounded by building B4, B3, C2, A2 and the community centre, as well as in other landscaped areas and the managed conservation areas. 60 Ms James assumes for her assessment that all plants will be removed under the proposal, resulting in 100% impact and as such she considers that a viable local population of the species will become extinct. This is her assessment in terms of the 1st of the 7 part test. 61 Dr Clements is of the opinion that the action proposed is not likely to have an adverse effect on the life cycle of the species, such that a viable local population is likely to be placed at risk of extinction. Her reasons are that the cuttings from the plants are to be used for propagation by a specialist nursery to increase long-term survival of the genetic material on the site, with tube stock planted in the managed conservation area and the plants are to be protected in-situ unless contaminated material is found near the plants with tube stock planted in the managed conservation area. 62 Dr Clements is of the opinion that the do nothing option is considered unlikely to protect and enhance the natural environment and 'do nothing' option would create risk of extinction in the short term or in the long term, as a result of direct or indirect impacts on the viability of that population. She further comments that the proposal is considered unlikely to have an adverse effect on the life cycle of the species, such that the viable local population is placed at risk of extinction. This is provided that the assumptions that only on-site sandstone, sandstone derived soils and local native species are used in the project as well as - Cuttings of the pants used for propagation to increase long-term survival of genetic material on the site. - The existing plants to be protected in-situ unless contaminated material is found near the plants with additional planting of tube stock grown from cuttings in a landscaped area. 63 The 2nd and 3rd tests the experts agreed are not applicable, as the Pimelea is listed as a vulnerable species and not an endangered population. 64 For the 4th test, Ms James states that on the site all known habitat and approximately 1 ha of potential habitat will be removed or modified within the proposed APZ. She further comments that limited potential habitat within the adjoining council land will be affected by indirect impacts resulting from loss of connectivity and isolation, edge affects and potential changes to hydrological flow characteristics. "in relation to the habitat of a threatened species, population or ecological community: 1. the extent to which habitat is likely to be removed or modified as a result of the action proposed" 65 Dr Clements states that the sandstone soils removed for construction works are to be reused in the landscaping and in the managed conservation area, hence preserving the potential soil seed bank on the site. She further comments that the extent of the habitat to be removed will depend on whether the Pimelea are retained in-situ 2. Whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action. 66 Miss James states that potential habitat within adjoining council land will become more isolated. Dr Clements is of the opinion that despite the removal of native sandstone soils and vegetation for the construction of the buildings and roads, connectivity is likely to continue to the north and south. 3. The importance of the habitat to be removed modified fragmented were isolated to the long-term survival of the species population or ecological community in the locality. 67 Ms James considers that all habitat is considered important to the long-term survival of the species in the locality. She advises there are only 4 records for the species in the locality ranging from 400 m to 1.4 km from the subject site and all except Redhill contain less than 10 plants. The Redhill population is exceptionally large with approximately 700 plants recorded. This large population is on council land, however, she states it is close to a residential area and is likely to be subject to disturbance and altered fire regimes. 68 Dr Clements on the other hand considers that the habitat proposed to be removed is well conserved in the locality as the council mapped 2 vegetation communities on site. Sandstone Heath is described by Smith and Smith as a common community in Warringah well represented in both Ku-ring-gai Chase and Garigal National Parks and Blood Wood Scribbly Gum Woodland is described as the most common community in Warringah well represented in both Ku-ring-gai Chase and Garigal National Parks. 69 The 5th test is whether the action proposed is likely to have an adverse effect on critical habitat. And on this test, Ms James states that no critical habitat has been declared for the species and Dr Clements says that there is no recovery plan or threat abatement plan prepared for the Pimelea. 70 The 7th test is the action proposed development constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. 71 Miss James states that clearing and fragmentation of native vegetation resulting in the loss of biodiversity is a key threatening process on schedule 3 of the TSC Act. The proposal in her opinion will clear and modify native vegetation resulting in loss and degradation of habitat 72 Dr Clements, states that while the proposal will require the clearance of all native vegetation in the area of the building and associated roads, clearing will not be required for the boardwalks. 73 In conclusion, Ms James says the proposed development will result in the removal of a local population of Pimelea Curviflora. Although the known population is small, this is typical for the species. The size of the population could be larger in view of the cryptic nature of the species and its ability to survive periods below ground as root stock and seed. She says there is approximately 1 ha of potential habitat at the site and this species is inadequately conserved within Warringah and across its known range. There will be a significant impact on the local population in her opinion. 74 Dr Clements states that the existing plants are to be retained in-situ, if possible, with supplementary plantings grown from tube stock, and that the proposal is not considered to represent a likely significant impact. 75 For the potential ameliorative measures Ms James comments that propagation and translocation of the 3 plants and relocation within the APZ or off-site has not been undertaken before therefore the risk is high, and translocation is a last resort and not generally supported. The other ameliorative measure is to retain the plants in-situ, however, she comments this will require associated habitat to be retained and the minimal area required to ensure long-term viability is unknown. In her opinion the impact of altered environment and the loss of connectivity on reproductive success is likely to be adverse. She concludes there is a high level of uncertainty associated with both these measures and neither can be relied upon to ameliorate impacts. 76 Dr Clements says that mitigating impacts of the proposal include establishing the on-site local native plants in the bioswales is readily achieved during construction phase. She also comments that retaining the plants in-situ will result in them continuing to be isolated and as mitigation measure there is potential to establish in areas not affected by buildings or roads, and by planting tube stock propagated from cutting, collected from the existing pants in the managed conservation area. 77 Dr Clements also recommends that prior to any works on the site the plants be tagged with cuttings for propagation to be collected by a specialist nursery and tube stock on site grown from cuttings to be planted on the site. She also recommends existing plants and planted tube stock are to be carefully monitored. Dr Clements recommends for the construction phase that the plants be fenced and protected and if they cannot remain in-situ they should be translocated intact in soil plant plugs into areas outside the proposed development area or to a specialist nursery for return post construction. Any potential required translocations are to be in accordance with the training network for plant conservation (ANPC) and translocation guidelines (ANPC 1997). 78 I am persuaded by Dr Clements 7 part test that the proposed activity is not likely to have a significant effect on threatened species populations and communities. Ms James incorrectly assumed that the 3 plants would be removed by the current proposal, comprising 100% impact. As agreed by the experts the preferred course of action is for the plants to remain in-situ, and in the event that they must be translocated I am still satisfied there is not likely to be a significant impact. This is because irrespective of whether the plants remain in-situ or are translocated, cuttings of the plants are to be used for propagation by specialist nursery to increase long-term survival of the genetic material on the site, tube stock grown from cuttings are to be planted on the site and the existing plants and planted tube stock are to be carefully monitored. 79 In my consideration of 7 part tests provided by the parties I have concluded that the proposed development is not likely to have a significant effect on threatened species populations or ecological communities or their habitats. As such, a species impact statement is not required to further address this matter and I do not need to rely on the addendum to the species impact statement that became exhibit S in the proceedings. Desired future character (DFC) 80 In my assessment of this issue, I am guided by the judgment of his Honour Preston CJ in Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87. His Honour sets out the planning controls and development as regulated by the Warringah Local Environmental Plan, wherein he states at para 53: "Unlike other local environmental plans in New South Wales, WLEP does not separate land uses in a hierarchy based on land use type, such as dividing residential, business and industrial uses from each other in prescriptive zones. Instead, WLEP employs a multi layer approach. One layer is based on the concept of a locality. A locality is a discrete geographical area of land or water. Each locality is delineated on the plan map mostly using street or property lines to show the boundaries of the locality. The criteria for delineating a discrete tract of land as the locality is, firstly geographical and secondly, the character of the tract of land, both existing but more importantly, the desired future character of the tract of land. ... Within each of the geographical areas tracts of land is further delineated based on the character of the land. The character of the land is influenced by both natural factors, such as physiographical and vegetative features as well as human influences, such as the pattern of development, types of use and manner of development. The character of the land includes that in existence, and importantly that which is desired in the future." 81 His Honour refers to the 3 categories of development as 1, 2 and 3, and he refers to the note in cl 12 that explains category 2 development is development that may be consistent with the desired future character of the locality, and he states that if development is fundamentally inconsistent with the desired future character statement of the locality it will be prohibited in that locality. His Honour states, "it is clear from the description I have given above that the means WLEP uses to control development that WLEP does not adopt a conventional zoning approach". 82 The planning experts Mr Cady and Mr Cole agreed on the elements to be considered in assessing the desired future character. In their joint statement they agree that the present character of the Oxford Falls Valley B2 locality consists of: predominantly natural landforms and remnant bushland; dwellings with associated and ancillary structures; and special use developments such as churches, schools, institutions and retirement villages. 83 They further agree that the contentions on planning issues can be consolidated into 3 main areas of: desired future character and general principles of development control (contentions 1 and 4); density and subdivision (contention 2 and 5); and strategic planning (contention 6). 84 For the desired future character and general principles of development control they agree that the development must be assessed on whether it is consistent with the DFC statement in the B2 locality. Specifically: - Whether the present character of the Oxford Falls Valley locality will remain unchanged; - Whether the development will be a low intensity low impact use; - Whether the natural landscape including landforms and vegetation will be protected and were possibly enhanced; - Whether buildings are located or grouped in areas that will minimise disturbance of vegetation and landforms, whether as a result of the buildings themselves of the associated works including access roads and services; - Whether the development is consistent with general principles of development control in cls 56, 57 and 58. 85 The planners adopt the definition of low intensity and low impact as contained in Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128 wherein: "Intensity is commonly used to identify the nature of the proposal in terms of its size and scale and the extent of the activities associated with the proposal. Therefore, low intensity would constitute a development which has a low level activities associated with it invent new 9 Impact is commonly used in planning assessment to identify the likely future consequences of proposed development in terms of its surroundings and can relate to visual, noise, traffic, vegetation, streetscape, privacy, solar access etc, therefore, low impact would constitute a magnitude of impacts such as that was minimal, minor or negligible level and unlikely to significantly change … the locality." 86 In assessing the proposal against the desired future character of the locality I must have regard to the whole of the locality (that is 1544 ha) and not a narrow focus on the subject site. 87 Mr Cole states that the present character includes predominantly natural landforms interspersed with dwellings and special use developments. He states that the character should not be altered from the time the instrument was gazetted. Mr Cady is of the opinion that character means the aggregate or qualities which distinguish the locality and that the question of whether the present character of the B2 locality is changed by the development can be identified by examining its character pre and post development in terms of landform, vegetation, contours, built form and character of adjacent localities. 88 Mr Cole says that the DFC provides that the present character will remain unchanged except in specific circumstances and that future development will be limited to new detached style housing of low intensity and low impact on the natural landscape including landforms and vegetation will be protected and where possible enhanced and buildings will be located and grouped in areas that will minimise disturbance to the site. I do not accept Mr Cole's opinion that the DFC was frozen at the time of gazettal of the LEP 2000. 89 Mr Cole says that the character will be altered to an urban form as the proposal would result in 100% variation. He states that site excavation works, cut and fill as shown in the applicant's plans would result in 11,600 cubic metres of cut and 1300 cubic metres of soil fill in addition to the rocks and managed conservation area, and that irrespective of the areas shown below 1 m in cut and fill this is still a modification of the site's natural landform and will require vegetation removal. He is of the opinion that the present character will be changed and the proposal does not group buildings in areas to minimise disturbance and that it will not be low intensity or low impact given the scale of the development by virtue of the number of buildings proposed the extent of driveways and the level of vegetation to be removed. 90 Mr Cady states that the site does not include the ridge top or watercourse elements emphasised in the DFC and that the site comprises 3 main terrace areas sloping from west to east that these levels are defined by an upper escarpment running north to south along the eastern curtilage of existing dwelling in the central band of prominent rock outcrops through the middle of the site north to south. He refers to the rock outcrops as having collective significance by way of their contribution of similar rock outcrop throughout the locality and that the development will not significantly change the present landform character of the B2 locality, because no ecologically important landform features on the site warrant in-situ conservation and that while some rock outcrops will be altered the majority of prominent outcrops are retained and the site will remain characterised by these in a manner consistent with other mid-slope locations throughout the B2 locality. He states that to minimise disturbance to the landform, the development is broken down into 9 separate buildings with each building having a small footprint that sits lightly on the landscape reflecting the level of the land upon which it is sited and with the buildings grouped within the benched or sloped parts of the site this preserves most significant rock outcrops and the escarpment. 91 Mr Cady states the above approach reduces the amount of required cut and fill and alteration to the existing contours. He comments that while the total excavation is 11,000 cubic metres some 6000 cubic metres is below building footprints with a total fill of 1000 cubic metres. This will allow the provision of basement parking rather than significant surface parking required for many developments. Figure 4 shows the proposed cut and fill. 92 Mr Cady states that the development will not have a significant impact upon the present landform character of the B2 locality as the site does not contain important environmental features that characterise the locality. The rock outcrops and overall landform that defines the landform character are not significantly altered. He notes that the plans show the individual buildings have small footprints and reflect the level of the ground on which they sit, buildings have been grouped to avoid the prominent escarpment and the band of rock outcrops that characterise the landform at the site. 93 Mr Cole considers the development will change the character of the B2 locality and result in a development not envisaged at the time the LEP was gazetted. He further considers that it is incremental urbanisation of the nonurban locality that the proposal would result in an overdevelopment of environmentally constrained land and the proposal would be inconsistent with the draft LEP provisions of the zoning of the land to E3 Environmental Management. 94 On the element of vegetation and the character of the B2 locality Mr Cady comments that the majority of the locality comprises remnant natural bushland that varies significantly from pristine to highly modified and vegetation of the B2 locality is typical of the Lambert soil landscape described as open and closed heathland, scrub and occasional low open woodland. He states that the proposed development would be consistent with the present vegetation character of the B2 locality and that the vegetation characteristics will not be significantly changed. He says that whilst the developed area of the site will increase from approximately 20% to approximately 52% the existing 20% is currently totally denuded of vegetation, and while 52% of the site is proposed to be landscaped in a bushland style using vegetation propagated from plant stock sourced from the site. Furthermore, he says that the road reserve will provide a substantial bushland buffer to Willandra Road and that the new driveway crossing is a single domestic driveway along a frontage of this length which is consistent with the existing character of the locality. 95 Mr Cole is of the opinion that compliance with the landscape open space provision is only one element of the LEP and does not guarantee consistency with the DFC. He refers to the number of trees to be removed for both the buildings and the APZ. 96 Figure 5 shows the number of trees to be removed as 147 and there are replacement plantings of 100 with 94 trees retained For the Council Mr Powe agreed that the concept landscaped plan is satisfactory, however, he has a fundamental concern with the fit of the proposed development. On the question of enhancement to vegetation on the site I am satisfied this is achieved by the proposal with the revegetation of degraded areas and the landscape regime proposed. In my assessment the landscape outcome will provide an appropriate fit with the adjoining area, in particular the B2 locality. 97 Mr Cady says that the proposed landscaped area of over 16,000 sq m and over 60% of the site complies with the 1120 sq m of landscaped area (35 sq m per dwelling) standard contained in cl 29(2)(c) and the 30% landscaped open space requirement contained in the B2 locality statement. Some 23% of the site will comprise buildings and roads and he acknowledges that apart from the retained rock outcrops and significant trees to be protected during excavation and construction that the spaces between the proposed building and roads will inevitably be disturbed during the construction process. However, he states that prior to commencement of building works topsoil and plant material from these parts of the site will be transferred for storage and propagation of site. This material will then be used on site in areas of crushed sandstone and revegetated from seed stock sourced from the site. Mr Cady is of the opinion that the proposed changes to existing vegetation will have negligible impact upon the bushland appearance of the site from surrounding properties and will therefore have negligible impact upon the bushland character of the B2 locality. 98 In my assessment of the DFC I am persuaded by Mr Cady's evidence that the proposal is consistent with the B2 locality and it will sit comfortably within this locality and positively contribute to and be consistent with the DFC. The proposal in my assessment conforms to a low intensity and low impact form of development and provides a suitable and consistent outcome for the B2 loacilty. Environmental Impact 99 The respondent contends that the site is environmentally significant and the proposed development will require modification to 90% of the site. 100 A species impact statement was prepared as a response to the advice received from council in September 2009 that an SIS was required. The development application initially was accompanied by an ecological assessment report, dated June 2009. In requiring the SIS council did not provide any scientific reason or any surveys refuting the findings of the ecological assessment report. The SIS was submitted in December 2009 101 The SIS concluded that the proposed development will not result in a significant impact on any threatened species, populations or endangered ecological communities or their habitats. I note that the SIS was prepared prior to the knowledge that the Pimelea plants, shown on the adjacent council land had been misidentified and that the only local population was the 3 plants on the subject site. An addendum to the SIS was prepared to overcome any jurisdictional question in the event I was not satisfied that there would not be a likely significant impact. The SIS prepared in December 2009 however, does provide surveys and an assessment of the site for flora and fauna species. While the conclusion in the SIS is that there will be no significant impact as a result of the proposed development it is recognised that the development will contribute to the fragmented loss of approximately 0.85 ha of natural bushland within the development footprint and further controlled management of 1.78 ha for asset protection zones. 102 On the question of habitat connectivity the SIS comments that Willandra Road and Lady Penrhyn Drive provides significant barriers to wildlife movement and that constraint provides significant reduced ecological values as a natural area corridor for wildlife dispersal. The ecological assessment report submitted provides an analysis of the site's corridor values and states that there is a significant limitation of the site to function as a recognised corridor due to steep roadside cuttings and Lady Penrhyn Road being the only vehicle for access in and out for the 170 dwelling houses at Red Hill. The SIS comments that habitat connectivity will be retained within land to the east and Council open-space reserve and the unformed public road reserve. Refer to figure 6. The SIS addresses the issue of environmental caution and under the heading of precautionary principle states: "The extent of ecological assessment over 10 years by a number of ecological consultants concluded that the landscape contains no significant ecological values. These impacts have arisen from both direct and indirect impacts from nearby residential development, road construction, weed invasion, noise from moving vehicles, increased fire regimes, altered drainage regimes and a lack of buffer distances in previously approved development in the area. It can be concluded that the development as proposed supports the contentions of the precautionary principle in that there has been more than sufficient scientific survey, assessment and due consideration to determine that no likely impact is likely including impacts on threatened species. critical habitat and significant regional species." 103 In my assessment of the environmental impact of the proposed development under s79C, the proposal is satisfactory, and this contention would not warrant refusal of the application. I recognise that the majority of the site will be modified. However, the environmental outcome is not unreasonable in the circumstances of this case. I say this having regard to the unique location of the subject site and the analysis of the ecological value of the site as set out in the SIS. The site analysis, the architectural plans and landscape plan provide for a development that in my assessment will provide for an appropriate fit in its context and a transition from the residential areas of the south-west and the bushland to the north. Housing density and Subdivision Standards 104 The council states the housing density standard is one dwelling per 20 ha of site area and states that housing density is measured by dividing the site area by the number of dwellings, which would equate to one dwelling for 795 sq m of site area. The council further contends the development does not fall within the exception set out as the development is not the purpose only of housing for older people or people with a disability. Furthermore, the council contends that the development is not consistent with the general principles of development control in cl 20, and the requirements for the Director-General's concurrence because the standard is varied by more than 10% is required. 105 Clause 12 requires the consent authority to be satisfied that the development will comply with the development standards set out in the locality statement and s cl B requires the consent authority to be satisfied development is consistent with the desired future character in summary. 106 The Oxford Falls Valley provides the desired future character statement and under built form the maximum housing density is one dwelling per 20 ha of site area except C "on land that adjoins a locality primarily used for urban purposes, and on which a dwelling house is permissible where there is no maximum housing density if the development is the purpose of housing for older people or people with a disability and the development complies with the minimum standards set out in cl 29 However consent may be granted to development that will contravene these housing density standards but, if by more than 10%, only with the concurrence of the Director. The matters which shall be taken into consideration in deciding whether concurrent should be granted are: (a) whether non-compliance with the development standard in issue raises any matter of significance to the state or regional environmental planning; and (b) the public benefit of maintaining the planning controls adopted by this plan (Exhibit 6, page 25 Cole). 107 That the proposed development includes a proposal for torens title subdivision and housing for older people. As such, the Council contends the proposal does not fall within the exceptions set out in paragraph C of the Housing Density Standard. 108 I accept the submission on behalf of the applicant that the word 'only' has been inserted into the contention and I am satisfied the proposed development is for the purpose of housing for older people and people with a disability and therefore falls under the Housing Density exception in subcl C. I accept the evidence of Mr Cady that the locality statement provides a generic 20 ha lot size density standard subject to the specific exceptions which includes "C" housing for older people and people with a disability. I also accept that the subject site adjoins a 'locality' primarily used for urban purposes on which a dwelling house is permissible and as such no maximum housing density is required for the purpose of housing for older people. Where such developments comply with the minimum standards set out in cl 29. This includes a floor space ratio of 0.5:1 whereas the proposed development is 0.23:1 and height restrictions that are also complied with. 109 I am satisfied that while the development application includes a proposal to subdivide the land into 2 Torrens title lots that the development is for the purpose of providing housing for older people. The subdivision is to allow the existing dwelling house to remain on the site and the RFS has deemed the existing dwelling inappropriate for use for housing for older people due to its proximity to the northern boundary. However, they raised no issue to the existing continued use of the building as a dwelling. 110 It was submitted on behalf of the respondent that the development contravenes the housing density standard by more than 10% and the Director-General has not given concurrence. However, it was also submitted that the Court has the power under s39(6) of the Land and Environment Court Act 1979 and I exercise this function in allowing the variation. 111 The LEP 2000 in appendix B for the Oxford Falls Valley locality has an inbuilt SEPP1 provisions where the concurrence of the Director is required and the matters that shall be taken into consideration in deciding whether concurrence should be granted. That is, where it raises matters of significance of the state or regional environmental planning and the public benefit of maintaining the planning control adopted by the plan. I am satisfied that there are no issues of State or regional environmental planning significance that are raised by a variation to the housing density standard and that it does not undermine the housing density standard in the LEP in the circumstances of this case. Having regard to the location of the subject site and the suitability of the proposed development for the site the variation cannot be seen as a precedent that others may seek to invoke without the proper consideration of the merits of individual sites. I have considered the need for concurrence as a precautionary measure in the allowing the variation. 112 On the question of whether cl 20 is available to vary standards, Mr Cole is of the opinion that the development is not consistent with the B2 Oxford Falls Valley locality desired future character statement and general principles of development control and therefore consent cannot be granted pursuant to cl 20. Mr Cady on the other hand considers that the provision to vary a standard in cl 20 is available if the design does not comply with one or more development standards provided the resulting development is consistent with the general principles of development, control the desired future character of the locality and any relevant state environmental planning policy. I accept Mr Cady's assessment that the proposed development is consistent with all general principles of development control and no SEPPs are in contention. The question of consistent with the desired future character is addressed above. 113 Mr Cole is of the opinion that the proposed development fails to meet the minimum allotment sites the subdivision, which is the same as the minimum density for a single dwelling (being one dwelling per 20 ha). He states that putting aside the proposed housing for older people. the minimum allotment size required for the 2 lot torrens title subdivision would be 40 ha and the proposed subdivision would result in an over development of environmentally constrained land. Mr Cole reiterates his opinion that the development does not fall within the exception of paragraph C of the housing density standard as the development is not only for the purpose only of housing for older people and incorporates torrens title subdivision. He concludes that consent cannot be granted under cl 20 notwithstanding the non-compliance with the housing density standard as the development is not consistent with the general principles of development control and the DFC. 114 Mr Cady considers that pursuant to cl 21 of the LEP the land can be subdivided as it meets sub cl 1A the resulting allotments can be developed in accordance with this plan and the resulting allotments contain buildings are works lawfully created or approved sub cl B (although I note that this subclause does not apply in the B2 locality). Subclause 3, in my assessment is also satisfied in that the proposed development is consistent with the provisions of schedule 7 to the LEP relating to matters for the subdivision of land. Strategic Planning and Draft LEP 115 During the proceedings there was considerable discussion about the weight to be given to the Draft Warringah LEP 2009. 116 The council proposes to zone subject site as E3 environmental management, and it was submitted that the draft plan is a response to significant long term strategic planning in the past including council residential development strategy. It also shows what councils long-term intentions are that the B2 locality not be incrementally developed which has previously been referred to as 'nibbling' by the Planning Assessment Commission in its report of April 2009. 117 The Planning Assessment Commission's report looked at 4 sites in the Oxford Falls Valley to ascertain if they were big enough to function as urban release areas, and none were considered to be of sufficient size. The sites considered in the Commission's report are Oxford Falls West, Red Hill, Lizard Rock and Cromer Golf Club. The subject site was not considered. The 4 sites were seen to be distant from public transport and there were issues concerning bushfires, steeply sloping land, water quality for the Narrabeen Lagoon and the impact on biodiversity. The report concluded that there should be a review of the B2 locality as a whole with further studies to be undertaken. 118 The report noted in 2001 that council sought to amend its LEP. However, this was not approved by the Department of Planning due to concerns regarding the impact of proposed environmental protection provisions on future urban land releases. The PAC report commented that the North -east Sub Regional Strategy identified a need for greater housing choice and the PAC report was in the context of whether land was needed to meet the housing targets and if so it would increase pressure for the release of land in Oxford Falls Valley. The Commission at its time of reporting considered that there was sufficient urban release land, however this should be reviewed in 5 years. The Commission recommended studies in the interim and stated "these may show that from an environmental perspective, some areas in the Valley are capable of being developed for urban purposes providing certain environmental measures are undertaken to manage cumulative impacts ... other areas will need to be protected to enable ongoing conservation and management". 119 The Commission further commented that: "In the longer term, a blanket environmental management zone over the entire area would not appear to be the most appropriate way to ensure planning objectives are met for the future planning of the valley ... PAC considers future planning of the area has to be carried out in a comprehensive and thorough way assessing cumulative impacts ... the visual impacts on any further development must also be considered". 120 The Commission noted that both the Metropolitan Strategy and the Draft North-east Sub Regional strategy see no need for urban land releases in Oxford Falls area and concluded that there is adequate land and redevelopment potential available to meet the demand for at least 10 years. The Commission concludes that if there is a need for further urban releases in the sub region. There may be potential for some urban development in the Oxford Falls Valley. 121 To assist the Court in consideration of the Draft LEP the respondent has recently advised that it has received communication from the Department of Planning that it considers the most appropriate action is to defer Oxford Falls Valley from the draft LEP until council has undertaken studies recommended by the Planning Assessment Commission. The Department further advises that upon completion of these studies council will be in a better position to determine the appropriate areas to be zoned for conservation and if appropriate, any areas suitable for urban development. 122 The Council responded to the Department and submits that the E3 environmental management zone is the correct zone for Oxford Falls Valley and the Council does not support deferring this land from the making of the Warringah LEP. The Council further submits that the B2 locality statement uses language and includes planning provisions that manage and protect the natural environment and Council refers to the desired future character statement for the locality. The Council also notes that "the housing density standard of 1 dwelling per 20 ha has been carried forward by successive planning instruments. In deciding on the E3 zone Council has crafted the zone to replicate the current provisions of the Warringah LEP 2000 and amongst other things make category 1 and 2 land uses permitted in E3 zone and category 3 prohibited land uses". 123 On the issue of seniors housing the Council submits to the Department that it is permitted in the Oxford Falls Valley locality, but only on lots that adjoin urban areas. However, seniors housing is prohibited in the E3 environmental management zone because the Warringah LEP 2000 incorporated SEPP's into the plan and at the time it was made the then SEPP permitted seniors housing on lots adjoining urban land. However, the new SEPP (Housing for Seniors and People With A Disability) does not allow seniors housing on environmentally sensitive land. The Council notes that the standard instrument does not incorporate SEPP's into the new LEP, but rather they will operate independently across the state. Council therefore in translating the WLEP 2000 into the standard instrument the provisions of those currently incorporated into the WLEP 2000 were removed. 124 The council further submits to the Department that deferral of the Oxford Falls Valley until the required studies are complete will result in the continued operation of the LEP 2000 for an unknown period of time in the order 5 years and council submits that this is unnecessary as the E3 zone is a translation of the existing provisions of the LEP 2000 into the standard instrument format. Council further submits that the zoning of the Oxford Falls Valley as E3 will not prejudice any future land-use planning review after the completion of the required studies. Council further submits that the administration of two planning instruments will create significant operational issues and deferred of a substantial land area is not in the best interest of sound planning outcomes at both the local and state level. 125 The provisions of s79C(1)(a)(ii) states: "Any proposed instrument that is or has been the subject of public consultation under this act, and that has been notified to the consent authority (unless the Director-General has notified the consent authority at the making of the proposed instrument has been deferred indefinitely, or has not been approved)". 126 Subsection (e), public interest, is also a matter for consideration in determining and development application and the judgment of the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 provides the authority for policies as well as draft plans to be considered. 127 The Draft LEP 2009 was placed on public exhibition and in the version referred to the Department for making under s68 there is a savings provision as noted above. The making of the LEP can be said to be closer than it was before, however, there is less certainty as to whether the Oxford Falls Valley including the subject site will be a deferred matter. 128 In light of recent communication between the Department and the Council, in my opinion the appropriate course of action for the determination of the developed application before me is to give the Draft LEP less weight now under s79C(1)(a)(ii) because of the uncertainty as to the future zone for the subject site. Nonetheless, the E3 zone as proposed by the council is a matter of public interest and indicates council's intentions for the area. Irrespective of whether the B2 area is zoned under the new plan as E3 or deferred it seems likely that the B2 locality will be the subject of further studies to more precisely identify land that may be worthy of conservation and sites with potential for development. I say this with the benefit of the Planning Assessment Commission report that also clearly highlights not only the need for further studies but questions whether a blanket environmental management zone is appropriate to the entire area and the requirements to review whether more land is required to meet housing targets in the longer term. 129 Having regard to the Commission's report, the subject site and proposed development does not suffer from the broader constraints of the 4 sites identified. Furthermore, the information now available through these proceedings has provided site-specific studies to allow an assessment of the necessary details and the appropriateness of the development for the subject site in its proper context. 130 From a strategic planning point of view the proposed development in my assessment will not only provide an appropriate transition from the conventional residential subdivisions surrounding the site to the east, south and west but it will also provide for conservation management and asset protection management for bushfires to be contained on site, whilst also maintaining appropriate connectivity between existing open space bushland areas, I accept the fact that the site, as identified in the SIS, has limitations in this functional sense because of the surrounding development, road network and topography. 131 The information available to the Court allows me to undertake a comprehensive assessment of the site in the context of its juxtaposition with adjoining lands and the constraints and opportunities provided by the site. In my assessment I must have regard to whether the proposed development is consistent and compatible with current and future planning for the area. From a strategic planning point of view it is important that I also assess the development application in the context of the broader area and I am satisfied the proposal before the Court is an appropriate development. 132 Furthermore, I am satisfied that the development of this site given its relationship with surrounding lands, could not be seen as a precedent for the B2 locality generally. The proposed development, even if the land is zoned E3, will not be an aberration and will also be consistent with the character of the B2 area that includes retirement villages and institutions on larger sites. In my assessment the proposed development will not only be compatible, that is coexist harmoniously with surrounding development, but will be consistent and adhere to the same principles of the desired future character of the area. In many respects the subject site is unique and properly calls for a comprehensive assessment not only in terms of the threatened species but the broader strategic approach that this site warrants. 133 The question of whether this site is deferred or zoned E3 I am satisfied in my assessment the proposal is consistent with the current B2 locality and compatible with the objectives of the E3 zone quoted above. 134 In my overall merits assessment of the proposal I note that in these proceedings the Court has had the benefit of extensive expert evidence and concurrent evidence and while I accept that there will be a change to the site, at the same time I'm satisfied that the paramount consideration of the character of desired future character of the Oxford Falls Valley locality, the proposal is consistent and compatible the desired future character and the provisions of the LEP are satisfied. 135 The site provides a number of opportunities in terms of its location, topography, and I am satisfied that its environmental quality is and its relationship with the existing bushland will not be undermined and would not warrant refusal of the application. I make these statements on the basis of all the evidence to the Court, including the site investigations and site analysis, and I am satisfied the proposed development will provide an appropriate fit in the context of both the natural and built environment. 136 While the contentions to the proceedings, as cited above, were extensive at the same time I have accepted the respondents summary of issues as identified in final submissions to provide a basis for my assessment. While at the same time having regard to all the particulars contained in the contentions. I am satisfied that there are no issues raised that would warrant refusal of the development application. 137 An integral part of my assessment of the proposed development for the site are the conditions that are imposed to provide certainty for not only the built outcome but in this case the environmental management of the site. Furthermore the ameliorative measures for the pimelia that forms part of my assessment as to likely impact should be reflected in the conditions. CONDITIONS 138 At the end of the proceedings there were a number of conditions in contention. 139 Condition 3a (now 4) pressed by the respondent is for the subdivision to occur after the construction of the housing for older people on proposed Lot 1. This is to ensure that subdivision does not occur without the construction of the housing for older people. The applicant submits that a covenant could be imposed on Lot 1 to the effect that it be used only the purposes of housing for older people. I have determined that a slight variation to the council's condition (amended to occupation certificate) be imposed. This is because the subdivision is only approved to allow the development for the purpose/use of the land for housing for older people. The draft LEP or a future LEP may prohibit the use of the land for seniors housing and the subdivision of the land prior to the development may create uncertainty in the planning process. Furthermore it would be inappropriate to excise /subdivide the land in the absence of the development being constructed and the consent would only be activated and the development of the housing for older people may not be constructed. 140 Condition 10a of the Council's version requires an Environmental Site Management Plan to be prepared and approved by the council. The applicant considers that the Biodiversity Management Plan in exhibit T produces the good environmental outcome. I accept Council's expert's opinion that the BMP is deficient in its current form. Furthermore documents/plans would need to reflect whether the Pimelea remains in-situ or is translocated. Therefore it is prudent in the circumstances that this fact be established prior to the commencement of the development and I have imposed a deferred commencement condition such that the testing of the soil around the Pimelea for contamination is to be carried out and the ESMP will then focus on requirements for an in-situ or translocation scenario for the Pimelea. 141 With respect to the Biodiversity Management Plan I am also persuaded by councils expert that such a plan should be prepared in accordance with the council's guidelines and forwarded to council for approval prior to the release of the construction certificate. 142 Condition 10b council contends that the approval of DECCW must be sought prior to the commencement of construction and that a plan provided at occupation stage is likely to result in damage to the Pimelea. The council further submits that in the addendum to the SIS the propagation of cuttings is an amelioration and mitigation measure that ultimately influences the conclusion in the SIS of no significant impact. The applicant relies on the ability to propagate in order to reduce the level of impact, and in this regard it is essential that a license sought and approved prior to the release of the construction certificate to ensure that the amelioration measures in the SIS are implemented. I accept council's submission and the condition is imposed. 143 The condition for landscaping council requires that all plants used for landscaping must be grown from provenance seeds and cuttings collected from the site, except in limited circumstances, and that council should then approve the alternate plant sourcing. The applicant submits that there is no need for further council approval. I have determined that the condition be imposed as required by council. 144 Condition 29 for the soil seed bank translocation requires this to be in accordance with the ESMP and I accept this condition should be imposed. Orders 145 Accordingly based on my assessment above the formal orders of the Court are: 1. The appeals, in respect of lot 806 DP 752038 and lot 12 DP 729342, are upheld. 2. The development application 2009/0800 submitted to Warringah Council and as amended for: a seniors living development consisting of 32 dwellings and associated facilities; subdivision into 2 lots; strata subdivision; and access from Penrhyn Drive, is determined by the granting of consent subject to a deferred commencement condition and operational conditions as contained in appendix 'A'. 3. The exhibits are returned to the parties with the exception of Exhibits: 1; 15; 19; 22; A; P; Q; and U. 4. Pursuant to the provisions of s97B of the Environmental Planning and Assessment Act the applicant is to pay that portion of the respondent's costs as agreed. ___________________ J S Murrell Commissioner of the Court ajl Attachment "1" Extract from Statement of Facts and Contentions - Exhibit 1 Part B - Contentions The respondent contends that the proposed development should be refused for the following reasons: 1. Desired Future Character The proposed development is not consistent with the B2 Oxford Falls Valley Locality Desired Future Character statement contained in WLEP 2000 for the following reasons: Particulars (a) The proposal seeks consent for category 2 development as set out in the B2 Oxford Falls Valley Locality Statement (and Clause 14(1) and (2) (b) Clause 12 (3)(b) of WLEP 2000 requires that before granting consent to development classified as category 2 development, "the consent authority must be satisfied that the development is consistent with the desired future character statement described in the relevant Locality Statement" (c) The proposed housing, housing for older people or people with disabilities and subdivision is not consistent with the desired future character statement for the B2 locality as: i) It will change the present character of the locality ii) It does not conform with the housing density standards set out in the Locality Statement iii) It is not a low impact or low intensity use iv) It does not protect or enhance the natural landscape (including landforms and vegetation) as the proposal will result in the removal and modification (through excavation, fill, construction, under-scrubbing and tree removal) of the whole of the development site as a result of the access road I driveways, 32 dwellings, footpath areas, platforms throughout the development, the proposed swimming pool and provision of asset protection zones. v) The proposed buildings and associated works including access roads and services have not been grouped in areas that will minimise disturbance of vegetation and landforms. vi) Insufficient information has been provided in terms of both stormwater modeling and Waterway Impact to fully assess the impact upon natural watercourses to ensure that ecological values of natural watercourses are maintained. 2. Housing Density a. The proposed development does not comply with the housing density standard set out in the B2 locality Statement (clause 12(2)(b) and clause 12(3)(b) (DFC). Particulars i) The housing density standard in the B2 locality is 1 dwelling per 20 hectares of site area. ii) The land to which the application relates and the site for the standard is the whole of lot Lot 806 in OP 752038 which has a site area of 26,250 square metres. iii) The application seeks consent for housing for older people or people with a disability (32 dwellings), the retention of the existing housing (1 dwelling) and subdivision of lot 806 to create a lot for the existing housing iv) Housing density is measured by dividing the site area by the number of dwellings proposed on the site including the existing dwelling to be retained giving a housing density of 1 dwelling per 795.45 square metres of the site area. v) The proposed development does not fall within the exception set out in paragraph (c) of the housing density standard as the development is not for the purpose only of housing for older people or people with a disability b. Consent cannot be granted under clause 20 notwithstanding the non· compliance with the housing density standard as the development is not consistent with the general principles of development control and the DFC. c. The development contravenes the housing density standard by more than 10% and the Director General has not given concurrence to the contravention of the housing density standard. d. Having regard to the significance of the matter for regional environmental planning and/or the public benefit of maintaining the planning controls under WLEP 2000, consent ought not be granted. 3. Threatened Species The applicant's conclusion in the Species Impact Statement prepared by Travers Bushfire and Ecology dated December 2009" that the proposed development at Lot 806 DP 752038, 70 Willandra Road, Beacon Hill, will not result in a significant impact on any threatened species, populations or endangered ecological communities or their habitats' should not be accepted. Particulars: Flora i. The proposed development is likely to have a significant impact on a local population of Pimelea curviflora var. curviflora listed as vulnerable under both the Threatened Species Conservation Act 1995 (NSW) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth). ii. The proposed development is likely to result in the loss or modification of potential habitat for an additional nine threatened flora and at least ten species of regional and local significance, iii. Survey for threatened flora species, as reported in the SIS, is inadequate in respect of survey effort, techniques and outcomes. iv. The assessment of significance does not consider all relevant direct and indirect impacts, particularly in relation to loss of connectivity and edge effects on lands adjoining the site, and potential changes to present hydrology. v. The assessment of significance does not consider the cumulative impacts of development within the Oxford Falls Valley on water catchment values, biodiversity and rare or threatened species from a regional and local perspective vi. The proposed ameliorative measures fail to effectively reduce impacts on biodiversity and threatened species. Fauna - experts agree no longer an issue. 4. Environmental Impact (a) Extent of modification i. The proposed development will have an unacceptable environmental impact as it will result in the removal and modification (through excavation, fill. construction, under-scrubbing and tree removal) of the whole of the development site as a result of the access road / driveways, 32 dwellings, footpath areas, platforms throughout the development the proposed swimming pool and asset protection zones. ii. The proposed development will have an unacceptable impact on adjoining land through loss of connectivity, loss of potential pollinators. edge effects and potential changes in hydrology and water availability. iii. The proposed development is inappropriate for an ecologically sensitive site and comprises an overdevelopment, largely due to the extent of site disturbance and required fire protection measures, No measures to provide for in-situ conservation are included (b) Environmental significance of the site The extent of the modification is unacceptable because: i. The site hosts significant habitat values. including rocky outcrops. dead wood, remnant bushland and natural watercourses ii. The site is situated in an area of contiguous regional core habitat (as defined by Smith and Smith 2009 Draft Revised Corridors Report) and at the intersection of local and regional wildlife corridors, upstream and downstream along South Creek iii The existing bushland within the locality is in mixed tenure; including private ownership, crown land. Council Reserve and National Park. As such, the security of this bushland cannot be assured. iv. The site contains vegetation of particular conservation significance in relation to biodiversity, habitat for rare and threatened species and protection of water catchments and v. The site lies on the boundary of a Priority Two and Three Wildlife Corridor as defined by Smith and Smith 2005. (c) Asset Protection Zones and Environmental Impact The extent of the site modification is unacceptable because the site hosts significant habitat values, including rocky outcrops, dead wood, remnant bushland and natural watercourses which when required to comply with the requirements stipulated within the NSW Rural Fire Service 5100B (Rural Fires Act 1997) Bushfire Safety Authority dated 4 February 2010 through under-scrubbing and tree removal which would result in large scale clearing of the site to prevent tree canopies and ground cover from being continuous as detailed within Planning for Bushfire Protection 2006. (d) Relevant planning controls i. Clause 12(1) of the WLEP 2000 states that a consent authority must be satisfied that a development is consistent with any relevant general principles of development control set out in part 4 of the WLEP 2000. ii. The proposal is not consistent with the following general principles demonstrating an unacceptable environmental impact: (a) Clause 56 Retaining distinctive environmental features on sites requires that the "Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land. In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses. " The natural landscape of the site is distinctive with significant environmental features such as rock outcrops, a natural watercourse and remnant bushland which are not retained or complemented by the development. This is the result of the proposed building footprint and, associated works including provision of the asset protection zones required for bushfire protection (b) Clause 57 Development on sloping land requires that "On sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope. " The natural landscape of the site is distinctive with significant environmental features such as, rock outcrops and remnant bushland which are not retained or complemented by the development. As a result of the proposed construction and modification of the existing natural features for a access road I driveways, 32 dwellings, footpath areas, platforms throughout the development the proposed swimming pool and Asset Protection Zones the development will not minimise cut and fill or the development foot print. (c) Clause 58 Protection of existing flora requires that "Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species. " 5. Subdivision Consent ought not be granted to the proposed Torrens title subdivision as: a. A subdivision plan has not been provided. b. The proposed lots do not comply with the minimum allotment size of 20 ha under clause 20(2) of VVLEP 2000 and the B2 Locality Statement (clause 12(2)(b8 as set out below: Area Site Area 26.250 sq m (2.625ha) Existing dwelling Lot 2064 sqm (0.2064ha) Residue Lot 24.186 sqm (2.4186ha) c. The resulting lots for the existing dwelling and the undeveloped residue lot cannot be developed in accordance with WLEP 2000 for the purpose of housing (clause 21 (1)(a)). d. The proposed subdivision and the resulting development is not consistent with the general principles of development control and/or the DFC for the B2 Locality (clause 20(1)). e. The concurrence of the Director General of the NSW Department of Planning has not been provided to vary the density provision for the Torrens title subdivision as is required by WLEP 2000. f. Non-compliance with the minimum allotment area standard would compromise the long term strategic intentions for the Oxford Falls Valley which is a matter of regional environmental planning, and g. There is public benefit in maintaining the minimum allotment area standard to prevent the cumulative impact of urban development on non-urban !and over an extended period, 6. Strategic considerations The site is not suitable for the proposed development form as it will contribute to the gradual urbanisation of remaining bushland in the Oxford Falls Valley contrary to orderly development considerations and the achievement of long-term environmental outcomes, Particulars a. The site is proposed to be zoned E3 Environmental Management under the Draft Warringah Local Environment Plan 2009, which has been the subject of public exhibition. Seniors Living development is prohibited in the E3 zone, which sets a minimum subdivision standard of 1 dwelling per 20 hectares. b. Having regard to the Planning Assessment Commission (PAC) report to the Minister on 30 April 2009, the Oxford Falls Valley is not suitable for urban release for at least the next 10 years and any release of land will take place in the context of an assessment of the cumulative impact of development across future urban release areas in the Oxford Falls Valley. 7. Overdevelopment of the Site Having regard to the contentions raised above, the proposed development represents an overdevelopment of the site summarised as follows: (a) Inconsistency with the Desired Future Character (b) Non compliance with the housing density standard (c) Impact on threatened species (d) Environmental impact of the development (e) Non compliance with the subdivision standard (f) Strategic considerations 8. Public Submissions To the extent that the contentions raised by Council are consistent with the matters raised by residents as summarised under the heading Advertising/Notification in Part A: Facts, the Court should take these submissions into account in determining the appeal, 9. Insufficient Information The information submitted in support of the application is inadequate for the proper assessment and determination of the application. Particulars (a) Excavation, fill and site disturbance i. The supporting documentation for the application does not provide adequate details to determine the extent of excavation and fill to create the development land form for the housing and road access … ii. Longitudinal sections and cross sections are to be provided for: Access road / driveways (at 10 metre intervals), all dwellings, all footpaths (at 10 metre intervals), platforms, and swimming pool. In accordance with the attached plan marked 'A". iii. A typical cross section of the access road is to be provided. These plans should detail the existing and proposed surface levels, extent of cut/fill battering, location and dimensions of concrete footpath, bio-filtration zones, swales, dwellings, etc. iv. The volumetric quantities of cut and fill should be provided, v The extent to which there is balance or imbalance of cut and fill and should be provided. … Annexure 'A' Conditions of Consent Lipman Properties Pty Ltd v Warringah Council PART A -- Deferred Commencement The following conditions are imposed as a deferred commencement conditions under s.80(3) of the Environmental Planning and Assessment Act 1979. 1. The soil and ground area in the vicinity of the pimelea curviflora is to be tested by a suitably qualified person to determine if the three plants can preferably remain 'in situ', or if the level of contamination requires their translocation. A report on the findings is to be submitted to the Council within three months of this consent. 2. If the plants are to remain in situ protection of the plants in accordance with the relevant accepted standards and as approved by the Council is to be put in place prior to the consent operating. 3. The pathway in the courtyard is to be relocated accordingly to be a minimum of 4 metres from the plants if they are to remain in situ. 4. The plans and reports referred to in the operational conditions, are to be prepared and or revised to reflect the outcome of the plants either remaining in situ or whether they are to be translocated. On the above condition being complied with the consent may then operate in accordance with the conditions in Part B. PART B APPROVED DEVELOPMENT Development Consent is granted to DA2009/0800 on land at Lot 806 in DP 752038 No. 8 Lady Penrhyn Drive Beacon Hill and DA 2009/1221 on land at Lot 12 in DP 729342 and the Willandra Road, Macintosh Road and Lady Penrhyn Drive road reserves for the following: Under DA2009/0800 for: - One into Two lot Torrens title subdivision; - Construction on Lot 1 of the two lot subdivision of: o 32 self contained dwellings for use as 'Housing for Older People or People with a Disability', provided in a cluster of 8 detached buildings; o A common amenities building comprising a multipurpose meeting room, gym, toilets, kitchen swimming pool and deck area; o Car parking comprising 56 resident spaces (a mix of 1 and 2 parking spaces per dwelling) and 10 visitor spaces; o Vehicle access ways; o Landscape and Conservation Management works; and o Bushfire hazard management works. - Strata subdivision of the housing for older people or people with a disability. Under DA2009/1221 for: - the construction and use of: (i) a pedestrian path comprising a 1.8 metre wide elevated timber deck (approximately at RL 86.1) and 1.8 metre wide concrete ramps (at 1:14 grade) cut into existing ground, between retaining walls. (ii) a 6.5 metre wide meandering asphalt driveway with 750mm wide drive over landscaped roadside stormwater detentions zones (SDZ), no raised kerbs, a services trench and a 1.8 metre wide concrete footpath. (iii) a 450mm diameter underground stormwater pipe. * to the extent development consent is necessary, to carry out works within Willandra Road, Macintosh Road and Lady Penrhyn Drive, for (iv) the installation of a pedestrian path within Lady Penrhyn Drive between Lot 12 and the roundabout intersection of Lady Penrhyn Drive and Willandra Road. (v) upgrade the existing pedestrian refuge and crossing point on the northern arm of the roundabout intersection of Macintosh Road and Willandra Road to satisfy Council's engineering design standards; (vi) modification of the gradient of a 40 metre section of footpath along the northern side of Macintosh Road between Willandra Road and Parr Parade to satisfy Council's engineering design standards. GENERAL CONDITIONS DEVELOPMENT CONSENT OPERATIONAL CONDITIONS 1. Approved Plans and Supporting Documentation The development must be carried out in compliance (except as amended by the deferred commencement condition and any other condition of consent ) with the following: Architectural Plans prepared by Allen Jack and Cottier Architects Pty Ltd Plans Number Revision Site Works Site Development Plan- Basement Level DA 1000 02 Site Development Plan- Level 1 DA 1001 02 Site Development Plan- Level 2 DA 1002 02 Site Development Plan- Roof Level DA 1003 02 Site Development Plan Lot 12 Through Site Links & Public Domain DA1004 01 FOR DA 2009/1221 Site Sections, Elevations DA1100 01 Site Sections, Elevations DA 1101 01 Pedestrian Access Plan DA 1200 01 Pedestrian Access (buildings B1, B2, Common) DA 1201 02 General Arrangement- Plans ILU Type A1 Plans DA 2101 02 ILU Type A2 Plans DA 2102 02 ILU Type B1 Plans DA 2103 02 ILU Type B 2, B3, B4 Plans DA 2104 02 ILU Type C1,C2 Plans DA 2105 02 Community Building Plans DA 2106 02 General Arrangement- Elevations and Sections ILU Type A1 Elevations and Sections DA 3101 01 ILU Type A2 Elevations and Sections DA 3102 01 ILU Type B1 Elevations and Sections DA 3103 01 ILU Type B2 Elevations and Sections DA 3104 01 ILU Type B3 Elevations and Sections DA 3105 01 ILU Type B4 Elevations and Sections DA 3106 01 ILU Type C1 Elevations and Sections DA 3107 01 ILU Type C2 Elevations and Sections DA 3108 01 Community Building Elevations/Sections DA 3109 01 Detail Arrangement Design Quality Drawing DA 4000 01 Engineering Plans Drawing Number Revision (dated) Prepared By SK01 P5 (11.05.10) Bonacci Group SK02 P5 (11.05.10) Bonacci Group SK03 P5 (11.05.10) Bonacci Group SK04 P3 (11.05.10) Bonacci Group SK05 P2 (11.05.10) Bonacci Group SK06 P3 (11.05.10) Bonacci Group SK07 P3 (11.05.10) Bonacci Group SK08 P3 (11.05.10) Bonacci Group SK10 P2 (11.05.10) Bonacci Group SK15 P1 (11.05.10) Bonacci Group SK16 P1 (11.05.10) Bonacci Group SK17 P1 (11.05.10) Bonacci Group Torrens Title Subdivision Plans Drawing Number Revision (dated) Prepared By 1729sub sheet 1 of 1 February 2010 Duncan John Sim Strata Title Subdivision Plans Drawing Number Revision (dated) Prepared By 1729STRATA sheet 1 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 2 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 3 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 4 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 5 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 6 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 7 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 8 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 9 of 10 30/06/2010 Duncan John Sim 1729STRATA sheet 10 of 10 30/06/2010 Duncan John Sim Strata Plan Administration Sheet 30/06/2010 Duncan John Sim Sheet 1 of 2 and Sheet 2 of 2 Recommendations of Reports / Documentation Report No. / Page No. / Section No. Dated Prepared By Aborist Report: June 2009 Andrew Simpson of Treescan All recommendations. STORMWATER QUANTITY & QUALITY INVESTIGATION Report: Requirements of Sections: Revision 4 MAY 2010 Stephen Naughton of Bonacci 5.1, 5.1.1, 5.1.2, 5.1.3, 5.2, 5.2.1, 5.2.2, 5.2.3, 5.2.4. Construction Management Plan May 2010 Lipman Properties Bushfire Management: June 2009 John Travers of Travers Bushfire and Ecology All recommendations of The management of the Northern Asset Protection Zone (except as amended by Part B of the Bushfire Experts Joint Expert Report or any requirement of the GTA\s of the NSW Rural Fire Service Document No: D09/0941 4 Feb 2010 – in the event of an inconsistency the RFS requirements will prevail) Landscape Report Revision G: Date May 2010 Site Image Landscape Architects Requirements of Sections: 1.4, 1.5, 2.0, 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 3.0, 3.1, 3.2 and 3.3 Recommendations from pages 116 and 117 of the Species Impact Statement except as provided in the Environmental Site Management Statement or if required to satisfy the requirements of the Rural Fire Services. December 2009 John Travers of Travers Bushfire and Ecology No construction works (including excavation) shall be undertaken prior to the release of the Construction Certificate. The development is to be undertaken generally in accordance with the following: External Colours and Finishes Drawing Number Dated Prepared By EXTERNAL FINISHES & COLOURS SCHEDULE 19.06.09 (issue 01) Allen Jack+Cottier Architects Pty Limited 08075 (pages 2/3 and 3/3 with associated colour sample pages) Landscape Plans Drawing Number Revision Prepared By Landscape Master Plan 101R R (18 June 2010) Site Image Landscape Architects 102 C Site Image Landscape Architects 601 B Site Image Landscape Architects Reason: To ensure the work is carried out in accordance with the determination and approved plans. (DACPLB01) 2. Compliance with submitted documentation The development must be carried out in compliance (except as amended by any other condition of consent) with any documentation required to be submitted by a condition of this development consent (e.g. Environmental Site Management Plan), Reason: To ensure the work is carried out in accordance with the determination of Council and approved plans. 3. Compliance with External Department, Authority or Service Requirements The development must be carried out in compliance with the following: External Department, Authority or Service name Letter Reference Dated Aboriginal Heritage Office DA2009/0800 10 August 2009 Energy Australia G:\Planning\Correspondence\CJP 13 July 2009 Reason: To ensure the work is carried out in accordance with the determination and the statutory requirements of External Department, Authority or Body's. (DACPLB02) 3A Conditions applying to the two lot Torrens title subdivision The conditions of this consent which apply to Lot 2 in the two lot subdivision are (a) Condition 1 insofar as it refers to Plan of Subdivision 1729sub sheet 1 of 1, February 2010 prepared by Duncan John Sim; (b) Conditions 2 (compliance with submitted documentation), 4 (RFS requirements) 6 (general requirements), 86 and 95 (Subdivision Plan). 4. Compliance with NSW Rural Fire Service Requirements The development must be carried out in compliance with the NSW Rural Fire Service General Terms of Approval detailed within a letter from the RFS referenced D09/0941 dated 4 Feb 2010 and stipulated as follows: General Conditions 1. The development proposal is to comply with the design detail and layout identified on the drawings prepared by Allen Jack & Cottier Pty Ltd, numbered DA 1000 to 1003, 2101 to 2106 and 3101 to 3109, issue 01, dated 19/06/09, except where varied by the conditions below. Asset Protection Zones The intent of measures is to provide sufficient space for fire fighters and other emergency services personnel, ensuring radiant heat levels permit operations under critical conditions of radiant heat, smoke and embers, while supporting or evacuating occupants. 2. At the commencement of building works and in perpetuity the entire property shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. 3. A minimum 60 metre asset protection zone (APZ) setback is to be provided from the northern boundary of the subject site to proposed units A1, B1 and A2. In accordance with section 88B of the 'Conveyancing Act 1919' a restriction to the land use shall be placed on the property requiring the provision of this APZ which shall be maintained as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. This restriction can be extinguished upon commencement of any future proposed development within the adjoining lots to the north, but only if the hazard is entirely removed or managed as part of the proposal. 4. A minimum 45 metre asset protection zone (APZ) setback is to be provided from the northern boundary of the subject site to proposed unit B2. In accordance with section 88B of the 'Conveyancing Act 1919' a restriction to the land use shall be placed on the property requiring the provision of this APZ which shall be maintained as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. This restriction can be extinguished upon commencement of any future proposed development within the adjoining lots to the north, but only if the hazard is entirely removed or managed as part of the proposal. 5. A minimum 20 metre asset protection zone (APZ) setback is to be provided along the entire length of the south eastern, southern and south western property boundaries of the subject site, particularly to proposed units A1, B2, B3, B4 and C1. In accordance with section 88B of the 'Conveyancing Act 1919' a restriction to the land use shall be placed on the property requiring the provision of this APZ which shall be maintained as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. This restriction can be extinguished upon commencement of any future proposed development within the adjoining lots, but only if the hazard is entirely removed or managed as part of the proposal. 6. A fire management plan is to be prepared that addresses the following requirements: a) Contact person / department and details; and b) Schedule and description of works for the construction of asset protection zones and their continued maintenance. 7. At the commencement of building works and in perpetuity the entire property surrounding the existing dwelling shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. Water and Utilities The intent of measures is to minimise the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting fire fighting activities. 8. Water, electricity and gas are to comply with sections 4.1.3 and 4.2.7 of 'Planning for Bush Fire Protection 2006'. Access The intent of measures for property access is to provide safe access to/from the public road system for fire fighters providing property protection during a bush fire and for occupants faced with evacuation. 9. Property access roads shall comply with sections 4.1.3(2) and 4.2.7 of 'Planning for Bush Fire Protection 2006'. The intent of measures for fire trails is to provide suitable access for fire management purposes and maintenance of APZs. 10. Fire trails shall comply with section 4.1.3 (3) of 'Planning for Bush Fire Protection 2006'. The intent of measures for internal roads is to provide safe operational access for emergency services personnel in suppressing a bush fire, while residents are accessing or egressing an area. 11. Internal roads shall comply with section 4.2.7 of 'Planning for Bush Fire Protection 2006'. Evacuation and Emergency Management The intent of measures is to provide suitable emergency and evacuation (and relocation) arrangements for occupants of special fire protection purpose developments. 12. Arrangements for emergency and evacuation are to comply with section 4.2.7 of 'Planning for Bush Fire Protection 2006'. + An Emergency/Evacuation Plan is to be prepared detailing the following: 1) under what circumstances will the complex be evacuated; 2) where will occupants be evacuated to; 3) roles and responsibilities of persons co-ordinating the evacuation; 4) roles and responsibilities of persons remaining with the complex after evacuation; and 5) a procedure to contact the NSW Rural Fire Service District Office / NSW Fire Brigade and inform them of the evacuation and where they will be evacuated to. Design and Construction The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack. 13. New construction shall comply with Australian Standard AS3959-1999 'Construction of buildings in bush fire-prone areas' Level 1. 14. Roller doors, tilt-a-doors and other such doors shall be sealed to prevent the entry of embers into the building. 15. Roofing shall be gutterless or guttering and valleys are to be screened to prevent the build up of flammable material. Any materials used shall have Flammability Index of no greater than 5 when tested in accordance with Australian Standard AS1530.2-1993 'Methods for Fire Tests on Building Materials, Components and Structures - Test for Flammability of Materials'. 16. The existing dwelling is required to be upgraded to improve ember protection. This is to be achieved by enclosing all openings (excluding roof tile spaces) or covering openings with a non-corrosive metal screen. Where applicable, this includes any sub floor areas, openable windows, doors, vents, weepholes and eaves. Landscaping 17. Landscaping to the site is to comply with the principles of Appendix 5 of 'Planning for Bush Fire Protection 2006'. General Advice – consent authority to note Fire Retardant Timber + The following timbers have been determined as being acceptable for use in achieving a standard of construction as per Australian Standard AS 3959-1999 'Construction of buildings in bush fire-prone areas' following testing by Warrington Fire Research (Warrington Report WRFA No. 20550 – report version 20550.2) for Level 1 & 2 construction: Jarrah, Balau (Selangan), Tallowwood, Forest Red Gum, Yellow Stringybark, Blackbutt, Kwila (Merbau), Red Iron Bark, Red River Gum, Silver Top Ash, Spotted Gum and Turpentine. 5. Prescribed Conditions (a) All building works must be carried out in accordance with the requirements of the Building Code of Australia (BCA): (b) BASIX affected development must comply with the schedule of BASIX commitments specified within the submitted BASIX Certificate (demonstrated compliance upon plans/specifications is required prior to the issue of the Construction Certificate); (c) A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: (i) showing the name, address and telephone number of the Principal Certifying Authority for the work, and (ii) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and (iii) stating that unauthorised entry to the work site is prohibited. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed. (d) Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information: (i) in the case of work for which a principal contractor is required to be appointed: A. the name and licence number of the principal contractor, and B. the name of the insurer by which the work is insured under Part 6 of that Act, (ii) in the case of work to be done by an owner-builder: A. the name of the owner-builder, and B. if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under the notice of commencement becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information. (e) Development that involves an excavation that extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must, at the person's own expense: (i) protect and support the adjoining premises from possible damage from the excavation, and (ii) where necessary, underpin the adjoining premises to prevent any such damage. (iii) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished. (iv) the owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this clause, allotment of land includes a public road and any other public place. Reason : Legislative Requirement. (DACPLB09) 6. General Requirements (a) Unless authorised by Council: Building construction and delivery of material hours are restricted to: 7.00 am to 5.00 pm inclusive Monday to Friday 8.00 am to 1.00 pm inclusive on Saturday, No work on Sundays and Public Holidays. Demolition and excavation works are restricted to: 8.00 am to 5.00 pm Monday to Friday only. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators, loaders and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site). (b) At all times after the submission the Notice of Commencement to Council, a copy of the Development Consent and Construction Certificate is to remain onsite at all times until the issue of a final Occupation Certificate. The consent shall be available for perusal of any Authorised Officer (under the provisions of the Environmental Planning and Assessment Act, 1979 and the Local Government Act, 1993 and Protection of the Environment Operations Act 1997, Threatened Species Conservation Act, 1995, Environmental Protection Biodiversity Conservation Act (Cth)); (c) Where demolition works have been completed and new construction works have not commenced within 4 weeks of the completion of the demolition works that area affected by the demolition works shall be fully stabilised and the site must be maintained in a safe and clean state until such time as new construction works commence. (d) Onsite toilet facilities (being either connected to the sewer or an accredited sewer management facility) for workers are to be provided for construction sites at a rate of 1 per 20 persons. (e) Prior to the release of the Construction Certificate payment of the Long Service Levy is required. This payment can be made at Council or to the Long Services Payments Corporation. Payment is not required where the value of the works is less than $25,000. The Long Service Levy is calculated on 0.35% of the building and construction work. The levy rate and level in which it applies is subject to legislative change. The applicable fee at the time of payment of the Long Service Levy will apply. (f) Smoke alarms are to be installed throughout all new and existing portions of any Class 1a building in accordance with the Building Code of Australia prior to the occupation of the new works. (g) The applicant shall bear the cost of all works associated with the development that occurs on Council's property. (h) No building, demolition, excavation or material of any nature shall be placed on Council's footpaths, roadways, parks or grass verges without Council Approval. (i) All sound producing plant, equipment, machinery or fittings associated with the operation and use of the premises other than for construction work will not exceed more than 5dB(A) above the background level when measured from any property boundary. Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community. (DACPLB10) CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE 7. Requirements for Housing for older people or people with a disability The development of Lot 1 of the subdivision approved by this consent is for the purpose of Housing for older people or people with disabilities as defined in Warringah Local Environmental Plan 2000 and is required to comply with the following: (a) Occupation The development may only be occupied as residential accommodation consisting of self-contained dwellings which is or is intended to be used permanently as housing for the accommodation of older people or people with disabilities, whether or not it is also used to accommodate people who live with older people or people with disabilities, or staff who are employed to assist in the administration of and provision of services to such housing. Older people means people aged 55 years or older People with a disability means people of any age who, as a result of having an intellectual, physical, psychiatric or sensory impairment, either permanently or for an extended period, have substantially limited opportunities to enjoy a full and active life. (b) Letter Boxes (i) Must be lockable, and (ii) must be located together in a central location adjacent to the street entry; and (iii) must be situated on a hard standing area and have wheelchair access by a continuous path of travel (within the meaning of AS 1428). (c) Private Car Accommodation (i) Each car parking space must be not less than 6 metres x 3.2 metres or the design of the development must be such as to enable the size of the car parking space to be increased to an area of not less than 6 metres x 3.2 metres, and (ii) any garage or carport must have an internal clearance of at least 2.5 metres as measured from the finished floor level of the garage or carport, and (iii) any garage must have a power-operated roller door, or there must be a power point and an area for motor or control rods to enable a power-operated door to be installed at a later date. (d) Accessible Entry Every entry (whether a front entry or not): (i) must not have a cross slope that exceeds 1:40, and (ii) must comply with clauses 4.3.1 and 4.3.2 of AS 4299, and (iii) must have an entry door handle and other hardware that complies with AS 1428. (e) External Door All external doors to any one dwelling must be keyed alike. (f) Internal Door (i) Internal doors must have a clearance of at least 820 millimetres. (ii) Internal corridors must have a width of at least 1,000 millimetres. (iii) The width at internal door approaches must be at least 1,200 millimetres. (g) Living room and dining room (i) a circulation space: (a) of at least 2,250 millimetres in diameter, and (b) as set out in clause 4.7 of AS 4299, and (ii) a telephone adjacent to a general power outlet. (iii) A living room and dining room must have a potential illumination level of at least 300 lux. (h) Kitchen A kitchen in a self-contained dwelling must have: (i) a width of at least 2.7 metres and a clear space between benches of at least 1,450 millimetres, and (ii) a width at door approaches of at least 1,200 millimetres, and (iii) benches that include at least one work surface: (a) that is at least 800 millimetres in length, and (b) the height of which can be adjusted from 750 millimetres to 850 millimetres, and (iv) a tap set: (a) that is located within 300 millimetres of the front of the sink, and (b) that is a capstan tap set or that comprises lever handles or a lever mixer, and (v) a thermostatic mixing valve for the hot water outlet, and (vi) cook tops: (a) with either front or side controls, and (b) with controls that have raised cross bars for ease of grip, and (c) that include an isolating switch, and (vii) a work surface adjacent to the cook top and at the same height and that is at least 800 millimetres in length, and (viii) an oven that is located adjacent to a work surface the height of which can be adjusted, and (ix) "D" pull cupboard handles that are located towards the top of below-bench cupboards and towards the bottom of overhead cupboards, and (x) general power outlets: (xi) at least one of which is a double general power outlet within 300 millimetres of the front of a work surface, and (xii) one of which is provided for a refrigerator in such a position as to be easily accessible after the refrigerator is installed. (i) Main Bedroom At least one bedroom within a self-contained dwelling must have: (i) an area sufficient to accommodate a wardrobe and a queen-size bed with a clear area at least 1,200 millimetres wide at the foot of the bed, and (ii) 2 double general power outlets on the wall where the head of the bed is likely to be, and (iii) at least one general power outlet on the wall opposite the wall where the head of the bed is likely to be, and (iv) a telephone outlet next to the bed on the side closest to the door and a general power outlet beside the telephone outlet, and (v) a potential illumination level of at least 300 lux. (j) Bathroom A bathroom must have: (i) an area that complies with AS 1428, and (ii) a slip-resistant floor surface, and (iii) a shower: (a) the recess of which is at least 1,160 millimetres x 1,100 millimetres, or that complies with AS 1428, or that complies with clause 4.4.4 and Figures 4.6 and 4.7 of AS 4299, and (b) the recess of which does not have a hob, and (c) that is waterproofed in accordance with AS 3740, and (d) the floor of which falls to a floor waste, and (e) that can accommodate a grab rail that complies with Figure 4.6 of AS 4299 and AS 1428, and (f) that has a tap set that is a capstan tap set or that comprises lever handles and that has a single outlet, and (g) that has the tap set positioned so as to be easily reached from the entry to the shower, and (h) that can accommodate an adjustable, detachable hand-held shower rose mounted on a slider grab rail or a fixed hook, and (i) that can accommodate a folding seat that complies with Figure 4.6 of AS 4299, and (iv) thermostatic mixing valves for all hot water outlets, and (v) a washbasin with clearances that comply with Figure 4.4 of AS 4299, and (vi) a wall cabinet that is sufficiently illuminated to be able to read the labels of items stored in it, and (vii) a mirror, and (viii) a double general power outlet beside the mirror. (k) Toilet Each residence must have a toilet: (i) that is a visitable toilet within the meaning of clause 1.4.12 of AS 4299, and (ii) that is installed in compliance with AS 1428, and (iii) that has a slip-resistant floor surface, and (iv) the WC pan of which is located from fixed walls in accordance with AS 1428, and (v) that can accommodate a grab rail that complies with Figure 4.5 of AS 4299 and AS 1428. (l) Laundry A self-contained dwelling must have a laundry: (i) that has provision for the installation of an automatic washing machine, and (ii) that has provision for the installation of a clothes dryer, and (iii) that has a clear space in front of appliances of at least 1,300 millimetres, and (iv) that has thermostatic mixing valves for all hot water outlets, and (v) that has a slip-resistant floor surface, and (vi) that has an accessible path of travel to any clothesline provided in relation to the dwelling. (m) Storage A self-contained dwelling must be provided with a linen cupboard: (i) that is at least 600 millimetres wide, and (ii) that has adjustable shelving. (n) Doors Door hardware provided as the means for opening doors must be: (i) able to be operated with one hand, and (ii) located between 900 millimetres and 1,100 millimetres above floor level. (o) Surface Finishes Balconies and external paved areas must have slip-resistant surfaces. (p) Ancillary Items (i) Switches must be located between 900 millimetres and 1,100 millimetres above floor level. (ii) General-purpose outlets must be located at least 600 millimetres above floor level. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure public safety, and equitable access for occupancy for older people or people with a disability. 8. Project Ecologist Prior to any works being undertaken on proposed Lot 1 a Project Ecologist is to be engaged for the duration of the onsite works and issue compliance certification as per the requirements of this consent. The Project Ecologist will ensure that all conditions relating to the biodiversity management of the property (including the Environmental Site Management Plan) are fully implemented and complied with at all times. The Project Ecologist shall meet the following minimum requirements:- + A vegetation management specialist with at least 4 years experience in the management of native bushland in the Sydney region; and + TAFE Certificate III in Bush Regeneration or Conservation and Land Management – Natural Area Restoration or higher level qualification in Ecology (or equivalent) or as otherwise agreed by Council; and + A member of the Ecological Consultants Association of NSW Inc or similar. Reason: To ensure bushland management (DACNEC07) 9. Waste/Recycling Requirements Details demonstrating compliance with Warringah Council's Policy Number PL 850 – Waste, including the required 'Waste Management Plan' are to be submitted to the Certifying Authority prior to the issue of any Construction Certificate. Note: If the proposal, when compliant with Warringah Council's Policy Number PL 850 – Waste, causes inconsistencies with other parts of the approval i.e. architectural or landscaped plans a modification(s) to the development may be required. Reason: To ensure adequate and appropriate waste and recycling facilities are provided." 10. Environmental Site Management Plan An Environmental Site Management Plan ("ESMP") is to be prepared by the Project Ecologist for the subject land consisting of proposed Lot 1 ("the site"). The plan is to be approved by Council prior to the issue of a Construction Certificate. Where the Project Ecologist is unable to prepare the documentation as required by this condition, the documentation shall be prepared by a suitably qualified person to the satisfaction of the Project Ecologist. The ESMP shall include the following:- (a) An Environmental Feature Survey is to be produced for the site showing the location of all environmental features that are to be retained as identified in plans under this consent (eg Termite Mounds, seeps, soaks and rock outcrops), and the boundary delineating the asset protection zone from the development footprint. The locations of features should be marked using differential GPS. The Project Ecologist is to ensure that all environmental features identified in this survey are protected and ultimately retained post development. (b) A Soil Seedbank Translocation Plan is to be prepared in accordance with Department of Environment and Climate Change Draft Guidelines for the Management of Duffys Forest EEC Remnants: Soil Seedbank Translocation Guidelines and in consultation with Council. The site has been nominated by Council as Red Hill Reserve, approximately 704m to the west of the site. The resultant translocation shall match the available space at Red Hill Reserve which is 4500 m2. In addition to offsetting the loss of biodiversity at the development site, the translocation site will provide a managed recipient site for the Pimelea curviflora var curviflora and ROTAP and regionally significant species in the instance that they require removal. The plan should outline; i. Methods and staging; ii. Performance evaluation (including the development of measurable target(s), monitoring of the translocation (including monitoring of threatened and significant flora) and associated reporting for a period of five (5) years from the completion of the translocation: and iii. Proposed maintenance program for the recipient site for a period of five (5) years from the completion of the translocation. Soil used in the translocation will, in the first instance be taken from areas around the existing Pimelea curviflora var curviflora specimens and other areas on the site considered suitable habitat for the species (woodland areas with ironstone gravel in the soil). Propagative material will be collected from site and used in the translocation such that at least 85% of the number of species currently onsite are reflected in the resultant translocation. (c) A Works Environment Protection Plan (WEPP) is to be prepared to ensure that all personnel working on the site are aware of the elements of the site to be protected. A copy of the WEPP must be kept in the site office. All site personnel must be inducted by the Project Ecologist with an induction record being maintained and available onsite at all times. All site personnel inducted will:- (a) Be familiar with the names and contact details of relevant people and authorities in the event of any environmental or site management emergency that may arise; (b) Be familiar with the presence of environmentally significant areas and species prior to construction commencing; (c) Be familiar with the location of trees with hollows and their importance to a variety of wildlife species; (d) Be familiar and aware of the presence of weed locations and the potential of weed seed propagules accidentally being introduced to the site. (e) Identify threatened species of fauna that may be present or venture into the subject site. (f) Identify threatened species of fauna that may be cryptic such as the Red-crowned Toadlet, Heath Monitor, etc. (g) Be familiar with animal welfare issues and procedures should human-wildlife interactions take place during the construction phase. (h) Have an understanding of flora and fauna management issues. (d) A Soil and Water Management Plan (SWMP) is to be prepared and must cover and apply to all works on the site, along with staging and maintenance requirements. The SWMP must meet, as a minimum, the requirements outlined in the Landcom publication Managing Urban Stormwater: Soils and Construction - Volume 1, 4th Edition (2004) . The SWMP is to be cross-referenced to other "plans" required by these conditions, where appropriate. The SWMP is also to meet any EPA licence requirements. The SWMP shall contain mechanisms for monitoring the condition of the surface water run off from the site to ensure control mechanisms are working and that the surface run off complies with the requirements of the above referenced Landcom publication. The monitoring program shall be designed in accordance with the "Study Design" requirements of Australian Guidelines for Water Quality Monitoring and Reporting (ANZECC, 2000) and incorporate suitable spatial and temporal replication. (e) A Biodiversity Management Plan is to be prepared in accordance with Councils Guidelines for Preparing a Biodiversity Management Plan . The plan shall include mechanisms for the monitoring & maintenance of managed vegetation onsite and remnant vegetation in the Council road reserve to the south-east of the site. Where the project ecologist identifies any hydrologic stress in these areas, the project ecologist shall oversee modification to the stormwater system such that the stress is rectified. The BMP shall apply to the site in perpetuity. Details demonstrating compliance with this condition are to be forwarded to Council for approval prior to the release of the construction certificate. Details demonstrating compliance with this condition are to be forwarded to Council for approval prior to the release of the construction certificate. Reason : Environmental protection 11. Protection of Pimelea curviflora var. curviflora and local native flora Prior to the issue of any construction certificate an application shall be made to DECCW (and approved) to propagate Pimelea curviflora var. curviflora ; Subject to the above being completed, propagative material from the Pimelea curviflora var. curviflora located on the site shall be collected and successfully grown by a specialist native nursery approved by Council. The resultant species will be planted in the soil seedbank translocation as required by this consent. Details demonstrating compliance with this condition are to be forwarded to Council prior to the release of the construction certificate. Reason: To ensure compliance with the requirement to manage threatened species on the site 12 Stormwater drainage and On-site Detention Compliance Certification i. The stormwater drainage system shall be configured in accordance with the Stormwater Experts Joint Report dated 28 May 2010 and Bonacci Stormwater Quantity and Quality Investigation Report Revision 4 specifications and plans ii. Drainage plans detailing the provision of On-site Stormwater Detention are to be provided in accordance with Warringah Council's "On-site Stormwater Detention Technical Specification" and in accordance with the approved stormwater plans Full details demonstrating compliance with the requirements of this condition, in addition to certification from either Council or a suitably qualified member of the Australian Institute of Engineers stating the stormwater drainage design is in accordance with the above requirements, is to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. If Council is to issue the Compliance Certificate for these works, the fee associated with the issue of the Compliance Certificate is to be in accordance with Council's Fees and Charges. Reason: To ensure appropriate provision for the disposal of stormwater and stormwater management arising from the development and to ensure development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained. 13 Stormwater Quality Management System Compliance Certification (i) The stormwater drainage system is to be configured to deliver the water quality outcomes specified in the Stormwater Quantity and Quality Investigation prepared by Bonacci Group (Rev 4, May 2010) . (ii) In order to demonstrate that the stormwater quality management system is performing as predicted in the Stormwater Quantity and Quality Investigation prepared by Bonacci Group (Rev 4, May 2010) (thereby minimising impacts to downstream environments) a design report demonstrating compliance is required. The report will need to demonstrate that the following elements have been incorporated into the Water Quality Monitoring Program: (a) The monitoring program shall be designed in accordance with the "Study Design" requirements of Australian Guidelines for Water Quality Monitoring and Reporting (ANZECC, 2000) and incorporate suitable spatial and temporal replication (e.g. before during and after development). (b) The monitoring program shall be designed to assess whether the stormwater quality management system is performing as predicted in the Stormwater Quantity and Quality Investigation prepared by Bonacci Group (Rev 4, May 2010) (iii) The monitoring program will be implemented and assessed by suitably qualified and experienced persons during construction and continue for a 12 month period after the system has been shown to be consistently treating site runoff as expected. A Compliance Certificate is to be issued by Council or an Accredited Certifier in Civil Works registered with Institute of Engineers Australia, or a suitably qualified member of the Institute of Engineers, Australia stating the stormwater drainage design is in accordance with the above requirements. If Council is to issue the Compliance Certificate for these works, the fee associated with the issue of the Compliance Certificate is to be in accordance with Council's Fees and Charges. Details demonstrating compliance with (ii) are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure appropriate provision for the disposal of stormwater and stormwater management arising from the development. 14 Dewatering during excavation works If excavation works require dewatering below the water table, a bore license must be applied for and obtained from the Department of Environment Climate Change and Water. The bore license must be obtained prior to commencement of dewatering works. All requirements of the Department of Environment Climate Change and Water are to be complied with and a copy of the approval must be submitted to the Certifying Authority. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To prevent ingress of sub-surface flows into the basement area and to comply with State Government Requirements. 15. Landscaping All plants used for landscaping for this development must be grown from provenance seeds and cuttings collected from the site except in the instances detailed and as follows: a) as approved by and to the satisfaction of Council or its delegate that planting within the private curtilages of the dwellings on a. proposed Lot 2 ; or b. as detailed on the approved strata plan. b) as approved by and be to the satisfaction of Council or its delegate that documentary evidence is supplied detailing that the quantity and/or maturity of plants required for the project cannot be obtained through the use of plants grown from provenance seeds and cuttings collected from the site and that plants grown from provenance seeds and cuttings collected from the site and that plants of matching botanical specification may be acquired from other sources and used in landscaping. Any alternate plant source shall not be approved if they are likely to cause modification to the soil or site hydrological conditions that would adversely impact on the native stock or cause any form of weed infestation as a result of planting Reason: To maintain environmental amenity 16. Deleted 17. Location of Threatened Species Prior to the issue of the construction certificate the applicant is to provide Council and the NPWS Wildlife Atlas with a report detailing the GPS locations (to 1 metre accuracy) and mapping of all known threatened, ROTAP present on the site. Reason : To ensure compliance with the requirement to retain and protect threatened and significant species on the site. 18. Bonds (a) Security Bond A bond (determined from cost of works) of $5,000 and an inspection fee paid of $210.00 as security to ensure the rectification of any damage that may occur to the Council infrastructure contained within the road reserve adjoining the site as a result of construction or the transportation of materials and equipment to and from the development site. (b) Construction, Excavation and Associated Works Bond (Crossing / Kerb ) A Bond of $5,000 as security against any damage occasioned in the carrying out of works pursuant to this consent or failure to complete the construction of any vehicular crossings, kerb and gutter and any footpath works required as part of this consent. (c) Construction, Excavation and Associated Works Bond (Pollution) A Bond of $10,000 as security to ensure that there is no transmission of material, soil etc off the site and onto the public road and/or drainage systems caused in the carrying out of works under this consent (d) Construction, Excavation and Associated Works Bond (Failure to Remove Waste) A bond of $10,000 as security against damage to Council's road(s) fronting the site caused by the transport and disposal of materials and equipment to and from the site. (e) Construction, Excavation and Associated Works Bond (Maintenance for civil works) The developer/applicant must lodge with Council a Maintenance Bond of $2,000 for the construction of vehicle crossing and drainage culvert in Willandra Road. The Maintenance Bond will only be refunded on completion of the Maintenance Period of six (6) months after the issue of a final occupation certificate, if work has been completed in accordance with the approved plans and to the satisfaction of Council. (NOTE: All bonds may be refunded and replaced by the Maintenance Bond upon submission to Council of the final Compliance Certificate or Subdivision Certificate.) All bonds and fees shall be deposited with Council prior to Construction Certificate or demolition work commencing, details demonstrating payment are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure adequate protection of Council infrastructure. (DACENC01) 19. Submission of Engineering Plans Engineering plans are to be submitted to the Certifying Authority for approval. The submission is to include four (4) copies of Civil Engineering plans for the design of access road from the kerb in Lady Penrhyn Drive to the road pavement in Willandra Road which are to be generally in accordance with the civil design approved with the Development Application and Council's specification for engineering works - AUS-SPEC #1 and or Council's Minor Works Policy. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure compliance with Council's specification for engineering works. (DACENC08) 20. Vehicle Crossings Application - Formwork Inspection An application for street levels shall be made with Council subject to the payment of fee applicable at the time of payment. The fee includes all Council inspections relating to the driveway construction and must be paid. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To facilitate suitable vehicular access to private property. ( DACENC12) 21. Section 94A Contributions The Section 94A Contributions are required to be paid for this development. This amount has been calculated using the Warringah Section 94A Development Contributions Plan. The amount will be adjusted at the time of payment according to the quarterly CPI (Sydney - All Groups Index). The basis for the contributions is as follows: Warringah Section 94A Development Contributions Plan Contribution based on total development cost of $16,000,000.00 Contribution - all parts Warringah Levy Rate Contribution Payable Total S94A Levy 0.95% $152,000 S94A Planning and Administration 0.05% $8,000 Total 1.0% $160,000 Details demonstrating payment are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To retain a level of service for the existing population and to provide the same level of service for the population resulting from new development. (DACPLC01) 22. Compliance with Standards The development (where applicable) is to be carried out in accordance with all relevant Australian Standards. (Note: At the time of determination the following (but not limited to) Australian Standards applied: (a) AS/NZS 2890.1:2004 Parking facilities - Off-street car parking. (b) AS2601.2001 - Demolition of Structures (c) AS4361.2 - Guide to lead paint management - Residential and commercial buildings (d) AS 1428.2 - 1992, Design for access and mobility - Enhanced and additional requirements - Buildings and facilities (e) AS4282:1997 Control of the Obtrusive Effects of Outdoor Lighting (f) AS 4373 - 2007 'Pruning of amenity trees' (Note: if approval is granted) (g) AS 4970 - 2009 'Protection of trees on development sites ' ( Note: that the above list is not exhaustive and it is the responsibility of the applicant and the Certifying Authority to ensure compliance with this condition and that the relevant Australian Standards are adhered to.) Details demonstrating compliance with the relevant Australian Standard are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure the development is constructed in accordance with appropriate standards. (DACPLC02) 23. External Colours and Materials (Industrial, Commercial, Mixed & Apartment Buildings) (a) External Glazing The reflectivity index of external glazing for windows or walls finishes of the proposed development is to be no greater than 20% (expressed as a percent of the reflected light falling upon any surface). (b) External Roofing The external finish to the roof shall have a medium to dark range in order to minimise solar reflections to neighbouring properties. Light colours such as off white, cream, silver or light grey colours are not permitted. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure that excessive glare or reflectivity nuisance from glazing does not occur as a result of the development. (DACPLC04) 24. Sewer / Water Quickcheck The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre prior to works commencing to determine whether the development will affect any Sydney Water asset's sewer and water mains, stormwater drains and/or easement, and if further requirements need to be met. Plans will be appropriately stamped. Please refer to the website www.sydneywater.com.au for: o Quick Check agents details - see Building Developing and Plumbing then Quick Check; and o Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building Developing and Plumbing then Building and Renovating. o Or telephone 13 20 92. Reason: To ensure compliance with the statutory requirements of Sydney Water. (DACPLC12) 25. Geo-Technical Report A Geo-Technical Report and certificate shall be prepared by an appropriately qualified Geo-technical Engineer certifying that the existing rock formations and substrate on the site are capable of withstanding: (a) the proposed loads to be imposed; (b) the extent of the proposed excavation, including any recommendations for shoring works that may be required to ensure the stability of the excavation; (c) protection of adjoining properties; (d) the provision of appropriate subsoil drainage during and upon completion of construction works. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure the structural integrity of the subject site and adjoining sites during the excavation process. (DACPLC14) 26. Remediation Action Plan If required by the environmental assessment (or Phase 2 Contamination/Detailed Investigation) report prepared, a Remedial Action Plan is to be prepared by a suitably qualified Environmental Consultant in accordance with State Environmental Planning Policy No. 55 – Remediation of Land, and with any contaminated land planning guidelines under the Contaminated Land Management Act 1997 Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: Protection of the environment, SEPP 55 compliance. (DACHPC01) 27. Structural Adequacy and Excavation Work Excavation work is to ensure the stability of the soil material of adjoining properties, the protection of adjoining buildings, services, structures and / or public infrastructure from damage using underpinning, shoring, retaining walls and support where required. All retaining walls are to be structurally adequate for the intended purpose, designed and certified by a Structural Engineer, except where site conditions permit the following: (a) maximum height of 900mm above or below ground level and at least 900mm from any property boundary, and (b) comply with AS3700, AS3600 and AS1170 and timber walls with AS1720 and AS1170. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: Safety. (DACENC19) CONDITIONS THAT MUST BE ADDRESSED PRIOR TO ANY COMMENCEMENT 28. Protection of Trees During Works All trees that are to be specifically nominated to be retained by notation or condition as a requirement of the development consent shall be maintained and protected during demolition, excavation and construction on the site. A project arborist is to be appointed to prepare a tree protection plan in accordance with AS4970-2009 "Protection of trees on development sites". Details of protection methods shall be provided to the Certifying Authority by an appropriately qualified Arborist prior to commencement of any works on the site. Reason: To ensure compliance with the requirement to retain and protect significant planting on the site. 29. Soil Seedbank Translocation The soil seedbank within the building footprint is to be excavated and translocated in accordance with the ESMP under the supervision of the Project Ecologist. Details prepared by the Project Ecologist in writing demonstrating compliance are to be submitted to the Principal Certifying Authority. Reason: Seed bank translocation protocols. 30. Public Liability Insurance - Works on Public Land Any person or contractor undertaking works on public land must take out Public Risk Insurance with a minimum cover of $10 million in relation to the occupation of, and approved works within Council's road reserve or public land, as approved in this consent. The Policy is to note, and provide protection for Warringah Council, as an interested party and a copy of the Policy must be submitted to Council prior to commencement of the works. The Policy must be valid for the entire period that the works are being undertaken on public land. Reason: To ensure the community is protected from the cost of any claim for damages arising from works on public land. (DACEND01) CONDITIONS THAT MUST BE COMPLIED WITH DURING DEMOLITION AND BUILDING WORK OR EARTHWORKS 31. Dust emission and air quality Materials must not be burnt on site. Vehicles entering and leaving the site with soil or fill material must be covered. Dust suppression measures must be carried out to minimise wind-borne emissions in accordance with the Landcom's Managing Urban Stormwater: Soils and Construction (The 'Blue Book'). Odour suppression measures must be carried out so as to prevent nuisance occurring at neighbouring properties. Reason: To ensure residential amenity is maintained in the immediate vicinity. 32. Installation and Maintenance of Sediment and Erosion Control Sediment and erosion controls must be installed in accordance with the Environmental Site Management Plan. Techniques used for erosion and sediment control on site are to be adequately maintained and monitored at all times, particularly after periods of rain, and shall remain in proper operation until all development activities have been completed and the site is sufficiently stabilised with vegetation. Reason: To protect the surrounding environment from the effects of sedimentation and erosion from the site (DACPLE02) 33. No Removal of Trees on Public Property No trees or native shrubs or understorey on public property (footpaths, roads, reserves, etc.) shall be removed or damaged during construction unless specifically approved in this consent including for the erection of any fences, hoardings or other temporary works. Reason: Protection of existing environmental infrastructure and community assets. 34. Intentionally left blank 35. Intentionally left blank 36. Use of fill Fill to be used on the site for construction of the approved work must comprise material excavated from the site in the first instance. Any fill that is necessary to be brought onto the site must have each load certified as Virgin Extracted Natural Material (VENM). Certification for each load must be made available to Council. The Project Ecologist is to certify that this condition has been complied with and provide the Principal Certifying Authority with compliance certification. Reason: Environmental Protection 37. Trees (1) Tree roots of 50mm or greater in diameter encountered during excavation, shall only be cut following consultation with a suitably qualified Arborist. Tree roots between 10mm and 50mm in diameter, severed during excavation, shall be cut cleanly by hand. (2) All new overhead utility services are to be located outside the canopies of existing trees. (3) The following guidelines are to be complied with at all times: (a) No activities, storage or disposal of materials shall take place beneath the canopy of any tree to be retained. (b) Trees marked for retention are not to be damaged or used to display signage, or as fence or cable supports for any reason. (c) Siting of sheds, stockpiles and vehicle parking should be sited so that they are remote from trees to be retained. (d) Site personnel are to be made aware of tree requirements and protective measures. Paving materials placed within the dripline of any tree should be of a porous material. During the construction period all trees to be retained are maintained in a healthy and vigorous condition in accordance with Australian Standard 4970 Protection Trees on Development Sites. (4) All trees on neighbouring properties are to be protected from adverse impacts caused by the works. Any excavations or changes of level occurring within the canopy of trees on neighbouring properties shall only be undertaken following consultation by a suitably qualified Arborist. Any mitigating measures and recommendations required by the Arborist are to be implemented. The owner of the adjoining allotment of land is not liable for the cost of work carried out for the purpose of this clause. Reason: Protection of Trees. 38. Tree Pruning Any tree pruning necessary for the approved construction shall be carried out under the supervision of an appropriately qualified Arborist and be in accordance with the relevant Australian Standards. Note: The following Australian Standard applied at the time of determination: o Australian Standard AS 4373.2007 - Pruning of Amenity Trees. Reason: To ensure protection and longevity of existing trees. . 39. Vehicle Crossings The provision of two vehicle crossings of a width to be determined in accordance with Section 3.2 of Australian Standard AS/NZS 2890.1:2004 and in accordance with Warringah Council Drawing No A4-3330/1 Normal and specifications. An Authorised Vehicle Crossing Contractor shall construct the vehicle crossing and associated works within the road reserve in plain concrete. All redundant laybacks and crossings are to be restored to footpath/grass. Prior to the pouring of concrete, the vehicle crossing is to be inspected by Council and a satisfactory "Vehicle Crossing Inspection" card issued. Details demonstrating compliance are to be submitted to the Principal Certifying Authority. Reason: To facilitate suitable vehicular access to private property.( DACENE05) 40. Civil Works Supervision All civil works approved in the Construction Certificate are to be supervised by an appropriately qualified and practising Civil Engineer. Details demonstrating compliance are to be submitted to the Principal Certifying Authority. Reason: To ensure compliance of civil works with Council's specification for engineering works. (DACENE06) 41. Footpath Construction The applicant shall construct a 1.2 metre wide concrete footpath between the southern driveway of the existing dwelling and the proposed eastern pram ramp adjacent to the roundabout along the Lady Penrhyn Drive frontage. The works shall be in accordance with the following: (a) All footpath works are to be constructed in accordance with Council's minor works policy (b) Council is to inspect the formwork prior to pouring of concrete to ensure the works are in accordance with Council's specification for footpath. Details demonstrating compliance are to be submitted to the Principal Certifying Authority. Reason: To ensure compliance of footpath works with Council's specification for engineering works. (DACENE07) 42. Laybacks A layback to the width to be determined in accordance with Section 3.2 of Australian Standard AS/NZS 2890.1:2004 (excluding the wings) is to be constructed in accordance with Council drawing No. A4-2276 and specifications Reason : To ensure suitable vehicular access to private property. 43. Maintenance of Road Reserve The public footways and roadways adjacent to the site shall be maintained in a safe condition at all times during the course of the work. Reason : Public Safety. (DACENE09) 44. Survey Certificate A survey certificate prepared by a Registered Surveyor at the following stages of construction: (a) Commencement of perimeter walls columns and or other structural elements to ensure the wall or structure, to boundary setbacks are in accordance with the approved details. (b) At ground level to ensure the finished floor levels are in accordance with the approved levels, prior to concrete slab being poured/flooring being laid. (c) At completion of the roof frame confirming the finished roof/ridge height is in accordance with levels indicated on the approved plans. Details demonstrating compliance are to be submitted to the Principal Certifying Authority. Reason: To determine the height of buildings under construction comply with levels shown on approved plans. (DACPLE01) 45. Property Boundary Levels The property boundary levels shall match the existing levels except where modified for the vehicular crossing. The applicant shall design and construct having regard for the existing levels. No approval is granted for any change to existing property alignment levels to accommodate the development. Details demonstrating compliance are to be submitted to the Principal Certifying Authority. Reason: To maintain the existing profile of the nature strip/road reserve. (DACENE01) 46. Progress Certification (Road & Subdivision) Written certification is to be provided by a suitably qualified engineer upon completion and/or as and when requested by the Certifying Authority for the following stages of works. (a) Silt and sediment control facilities (b) Laying of stormwater pipes and construction of pits (c) Sub-grade trimmed and compacted ** (d) Base-course laid and compacted ** (e) Kerb and gutter construction (f) Pavement (g) Landscaping and vegetation (h) Clean-up of site, and of adjoining Council roadway and drainage system. (**To be tested by a recognised N.A.T.A. approved laboratory). Details demonstrating compliance are to be submitted to the Principal Certifying Authority. Reason: To ensure compliance of civil works with Council's specification for engineering works (see www.waringah.nsw.gov.au ). (DACENE02) 47. Traffic Control During Road Works Lighting, fencing, traffic control and advanced warning signs shall be provided for the protection of the works and for the safety and convenience of the public and others in accordance with Council's Minor Works Policy and to the satisfaction of the Principal Certifying Authority. Traffic movement in both directions on public roads, and vehicular access to private properties is to be maintained at all times during the works. Reason: Public Safety. (DACENE11) 48. Weeds No noxious or environmental weeds, as listed on Warringah Councils website are to be imported on to the site. Any noxious weeds or environmental weeds on the site are to be managed continuously, in accordance with the Noxious Weeds Act 1993 and the ESMP. Details prepared by the project ecologist in writing demonstrating compliance is to be submitted to the Principal Certifying Authority. Reason: To ensure bushland and riparian management. (DACNEE02) CONDITIONS WHICH MUST BE COMPLIED WITH PRIOR TO ISSUE OF OCCUPATION CERTIFICATE 49. Section 88B Instrument Asset Protection Zones Prior to the issue of an occupation certificate, an instrument in registrable form containing a public positive covenant in favour of the Council pursuant to section 88E Conveyancing Act, 1919 and a section 88B instrument which includes the covenant pursuant to section 88E shall be prepared and submitted to Council for endorsement requiring the Asset Protection Zones to be established and maintained in accordance with - the requirements of the NSW Rural Fire Service (RFS) General Terms of Approval for this development as listed elsewhere within this consent, - Environmental Site Management Plan, and - the approved plans stipulated within this consent, In the event of an inconsistency between the above listed documents the requirements of the RFS will prevail to the extent of the inconsistency. The Council shall execute the above instruments at the same time as the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instruments may be registered on the title of all the allotments details on the strata plan applying to proposed lot 1 at the same time as the strata plan is registered.. The instrument must stipulate that the only person with the right to release, vary or modify the covenant is the Council. All costs associated with the preparation, execution and registration of the instrument are to be borne by the owner of the land. 50. Removal of All Temporary Structures/Material and Construction Rubbish Once construction has been completed all silt and sediment fences and straw bales unless otherwise required by the environmental site management plan, silt, rubbish, building debris, and temporary fences are to be removed from the site. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure bushland management . 51. Works Adjacent to Tree Roots Construction works, development (including utilities), or soil level changes within the critical root zones of the trees identified for protection shall be avoided, or, if unavoidable, shall be restricted to pier and beam style or suspended slab construction (including driveway construction). Reason: To protect trees to be retained. 52. Establishment of Stormwater Quality Management System All elements of the proposed stormwater drainage system must be fully established prior to occupation, in accordance with the Stormwater Experts Joint Report dated 28 May 2010 and Stormwater Quantity and Quality Investigation prepared by Bonacci Group (Rev 4, May 2010) and the approved stormwater plans such that the system will deliver the expected performance outcomes. This includes but is not limited to establishment of plantings, soil media, erosion protection and other elements of the stormwater quality management system that are necessary to deliver the expected performance outcomes. The Project Ecologist and the Project Engineer are to certify that this condition has been complied with and provide the Principal Certifying Authority with compliance certification, copies are to be immediately forwarded to Warringah Council. Reason : Environmental Protection, Monitoring and Enhancement 53. Weed Control Such amount of weed control and bush regeneration, in accordance with the approved Environmental Site Management Plan must be undertaken on the site prior to the occupation certificate being issued as to leave the site requiring only low level weed maintenance. The Project Ecologist is to certify that this condition has been complied with and provide the PCA with compliance certification, copies are to be immediately forwarded to Warringah Council. Reason: To ensure environmental protection 54. Restriction on animals No cats, dogs (other than "assistance animals" as defined by the Companion Animals Act, 1998), horses, sheep, cattle and other animals of the kinds which fall within the definition of "stock" under the Rural Lands Protection Act 1998 are permitted onsite of Lot 1 in the proposed torrens title subdivision at any time in-perpetuity unless under the immediate control of a resident or they are otherwise restrained. Prior to the issue of a occupation certificate a section 88B instrument which includes the restrictive covenant which prohibits the keeping of the set animals, in registrable form shall be prepared by the owner of the land and produced to Council for approval and execution. The instrument must stipulate that the only person with the right to release, vary or modify the covenant is the Council. All costs associated with the preparation, execution and registration of the instrument are to be borne by the owner of the land. A restrictive covenant is to be included in the 88B instrument prior to the release of the subdivision certificate. Reason : To ensure bushland management 55. Bush Regeneration Works Bush regeneration works in accordance with the Environmental Site Management Plan are to start at the commencement of works onsite and continued and maintained as per the requirements of the Environmental Site Management Plan. The Project Ecologist is to certify that this condition has been complied with and provide the PCA with compliance certification, copies are to be immediately forwarded to Warringah Council. Reason: Environmental Protection 56. General Watercourse and Riparian Areas Matters At all times, unless in accordance with the approved works it must be ensured that: (a) No materials or cleared vegetation that may obstruct flow or cause damage to wetlands or intermittent watercourses are to be left on any land. (b) All drainage works capture and convey runoffs, discharges and flood flow in accordance with the approved plans and do not obstruct or otherwise change the pre-development hydrology of the site except as required by Council's onsite detention policy. Discharge points are to be sited in accordance with Stormwater Quantity and Quality Investigation report prepared by Bonacci Group (Rev 4, May 2010) and the approved stormwater plans and stabilised to prevent erosion. Any excavation must not result in diversion of or damage to any watercourse (including wetlands and intermittent watercourses), bank instability or native vegetation. (c) Watercourse diversion, realignment or alteration does not result from site works and must maintain the existing geomorphic functions, including flow patterns and soil stability. (d) Any vegetation or other material removed from the area of operations shall be disposed of lawfully to an appropriate site where the material cannot be swept into downstream environments. No Burning of the material is permitted. Reason: Environmental Protection, Monitoring and Enhancemen t Reason for deletion: this is covered by condition 55 57. Registration of Encumbrances for On-site Stormwater Detention A copy of the certificate of title demonstrating the creation of the positive covenant and restriction for on-site storm water detention as to user is to be submitted to Council following registration. Reason: To identify encumbrances on land. (DACENF02) 58. Restriction as to User for On-site Stormwater Detention A restriction as to user shall be created on the title to the common property in the proposed strata plan applying to Lot 1 over the on-site stormwater detention system to be located within the common property in proposed Lot 1 restricting any alteration to the levels and/or any construction on the land and any alterations or additions to the system. The terms of such restriction are to be prepared to Council's standard requirements, (available from Warringah Council), at the applicant's expense and provided to Council by instrument in registrable form prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such restriction. The Council shall execute the instrument at the same time the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan. Details demonstrating compliance with such provision are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure modification to the on-site stormwater detention structure is carried without Council's approval. ( DACENF04) 59. Certification of Drainage Works and Works As Executed Data The Civil Engineer responsible for the supervision of the civil drainage works shall certify that the completed works have been constructed in accordance with this consent and the approved Construction Certificate. Works as Executed data certified by a registered surveyor is to be provided to Council. Full details of the information to be submitted to Council, as part of the Works as Executed Data, are outlined in Council's 'Guideline for preparing Works as Executed data for Council stormwater assets' which is available from Council's Natural Environment Unit. The Works as Executed data is to be verified by the Principal Certifying Authority prior to submission of any documentation. The Works as Executed Data is to include but not be limited to the following: + Works As Executed (WAE) plan, + a Spreadsheet Schedule of all stormwater asset attributes and + a CCTV Report of the completed pipeline Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure compliance of drainage works with Council's specification for engineering works. (DACENF06) 60. On-Site Stormwater Detention Compliance Certification Upon completion of the on-site stormwater detention (OSD) system, certification from a consulting engineer and a "work as executed" (WAE) drawing certified by a registered surveyor and overdrawn in red on a copy of the approved OSD system plans are to be provided to Council. Additionally a Compliance Certificate is to be issued by a suitably qualified member of the Institute of Engineers Australia, stating that the works are in accordance with the approved plans. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure stormwater disposal is constructed to Council's satisfaction. (DACENF10) 61. Positive Covenant for On-site Stormwater Detention A positive covenant shall be created on the title to the common property in the proposed strata plan applying to Lot 1 requiring the proprietor of the land to maintain the on-site stormwater detention structure in accordance with the standard requirements of Council's On-site Stormwater Detention Technical Specification. The terms of the positive covenant are to be prepared to Council's standard requirements, (available from Warringah Council website at http://www.warringah.nsw.gov.au/plan_dev/documents/OnsiteStormWaterDetentionTechnicalSpec.pdf ), at the applicant's expense and provided in registrable form to Warringah Council's delegate prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such covenant. The Council shall execute the instrument at the same time the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan. Details demonstrating compliance with such provision are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure ongoing maintenance of the on-site stormwater detention system. (DACENF12) 62. Garbage and Recycling Facilities All internal walls of the garbage storage area shall be rendered to a smooth surface, coved at the floor/wall intersection, graded and appropriately drained to the sewer with a tap in close proximity to facilitate cleaning. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To prevent pollution of the environment and to protect the amenity of the area. (DACPLF03) 63. House / Building Number House/building number is to be affixed to the building to be readily visible from the new access driveway. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: Proper identification of buildings. (DACPLF04) 64. Undergrounding of Telecommunications Services Arrangements are to be made for the provision of underground telecommunications services from the point of connection to the building. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: Provision of telecommunication facilities in a manner that facilitates the future underground provision of cable services. (DACPLF06) 65. Fire Safety Matters At the completion of all works, a Fire Safety Certificate will need to be prepared which references all the Essential Fire Safety Measures applicable and the relative standards of Performance (as per Schedule of Fire Safety Measures). This certificate must be prominently displayed in the building and copies must be sent to Council and the NSW Fire Brigade. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Interim / Final Occupation Certificate. Each year the Owners must send to the Council and the NSW Fire Brigade an annual Fire Safety Statement which confirms that all the Essential Fire Safety Measures continue to perform to the original design standard. Reason: Statutory requirement under Part 9 Division 4 & 5 of the Environmental Planning and Assessment Regulation 2000. (DACPLF07) 66. Sydney Water A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au < http://www.sydneywater.com.au > then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 for assistance. Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Co-ordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any Interim / final Occupation Certificate and / or Subdivision Certificate. Reason: To ensure compliance with the statutory requirements of Sydney Water. (DACPLF08) 67. Swimming Pool Requirements The Swimming Pool shall not be filled with water nor be permitted to retain water until: (a) All required safety fencing has been erected in accordance with and all other requirements have been fulfilled with regard to the relevant legislative requirements and relevant Australian Standards (including but not limited) to: (i) Swimming Pools Act 1992; (ii) Swimming Pools Regulation 2008 (iii) Australian Standard AS1926 Swimming Pool Safety (iv) Australian Standard AS1926.1 Part 1: Safety barriers for swimming pools (v) Australian Standard AS1926.2 Part 2: Location of safety barriers for swimming pools (b) A certificate of compliance prepared by the manufacturer of the pool safety fencing, shall be submitted to the Principal Certifying Authority, certifying compliance with Australian Standard 1926. (c) Filter backwash waters shall be discharged to the Sydney Water sewer mains in accordance with Sydney Water's requirements. Where Sydney Water mains are not available in rural areas, the backwash waters shall be managed onsite in a manner that does not cause pollution, erosion or run off, is separate from the irrigation area for any wastewater system and is separate from any onsite stormwater management system. (d) Signage is to be provided stipulating appropriate instructions for artificial resuscitation methods. (e) A warning sign stating 'YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS POOL' has been installed. (f) All signage shall be located in a prominent position within the pool area. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of a Interim / Final Occupation Certificate. Reason: To protect human life (DACPLF09) 68. Validation for Remediation If remediation work is required, a validation and site monitoring report, including a survey of all sites used for landfill disposal is to be prepared in accordance with relevant guidelines issued under the Contaminated Land Management Act 1997 must be submitted to the Council within one month from completion of the remediation work. The plan must identify the extent and depth of all fill material in relation to existing roadways and buildings. The survey must also include a detailed survey of all sites used as landfill disposal pits, identifying boundaries and depth of disposal pits in relation to existing roadways and buildings. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure environmental amenity is maintained. (DACHPF06) 69. Occupation of Housing for older people or people with a disability A restriction as to user pursuant to s88E of the Conveyancing Act 1919 is to be registered on the title to all lots in the proposed strata plan applying to proposed Lot 1 of the subdivision approved by this consent The restriction shall be for the benefit of the Council, in terms of condition 7(a) of this consent as to the permitted occupancy for the purpose of housing for older people or people with a disability and shall stipulate that Council is the sole authority authorised to release or modify the restriction. The terms of such restriction shall be prepared at the applicant's expense and provided to Council by instrument in registrable form prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such restriction. The Council shall execute the instrument at the same time the strata certificate is issued or after being provided with a copy of the strata certificate if the strata certificate is given by a Private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan. Details demonstrating compliance with such provision are to be submitted to the Certifying Authority prior to the issue of any interim/final Occupation Certificate. Reason: Statutory requirements. 70. Certification of completion of requirements for Housing for older people or people with a disability Details demonstrating that all stipulated requirements of this development consent for Housing for Older people or people with a disability have been completed. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure statutory requirements have been completed, public safety, and equitable access for seniors of people with a disability. ON-GOING CONDITIONS THAT MUST BE COMPLIED WITH AT ALL TIMES 71. Allocation of Spaces Car parking spaces on proposed Lot 1 shall unless otherwise shown on the strata plan be provided, made accessible and maintained at all times. The spaces shall be allocated as follows: two (2) per 3 bedroom unit and a minimum of one(1) per 2 bedroom unit - Residential all other onsite spaces - Visitors Car-parking provided shall be used solely in conjunction with the uses contained within the development. Each car parking space allocated to a particular unit / tenancy shall be line marked and numbered or signposted to indicate the unit / tenancy to which it is allocated. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure that adequate parking facilities to service the development are provided on site. (DACPLG01) 72. Visitor Car parking Visitor car parking must be permanently available, freely accessible and clearly marked / signposted. The visitor car parking spaces area not to be allocated to individual units / tenancies. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure visitor carparking is available at all times and is clearly identified. (DACPLG02) 73. Vehicle Egress Signs Appropriate sign(s) shall be provided and maintained within the site at the point(s) of vehicular egress to compel all vehicles to come to a complete stop before proceeding onto the public way. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure pedestrian safety. (DACPLG03) 74. Visitors Sign A sign, legible from the street, shall be permanently displayed to indicate that visitor parking is available on the site and the visitor car parking spaces shall be clearly marked as such. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of any interim / final Occupation Certificate. Reason: To ensure that visitors are aware that parking is available on site and to identify those spaces to visitors. (DACPLG04) 75. Commercial Waste Collection Waste and recyclable material, generated by this premises, must not be collected between the hours of 10pm and 6am on any day. Reason: To protect the acoustic amenity of surrounding properties. (DACPLG18) 76. Commercial Waste and Recycling Storage Commercial waste and recycling material/storage bins must be stored in a separate area to the residential waste and recycling material/storage bins as shown on the approved plans. Reason: To ensure that commercial waste and residential waste is not mixed and is properly managed. (DACPLG19) 77. Washing of Vehicles Washing of vehicles/boats/trucks/buses etc is to be conducted in a car wash bay, which is roofed and bunded to exclude rainwater. All wastewater from car washing is to be discharged to the sewer under a Trade Waste Agreement from Sydney Water. Alternative water management and disposal options may be possible where water is recycled, minimised or re-used on the site. Any such alternative option is to comply with all relevant Standards. Note: The following Standards applied at the time of determination: o Environment Protection Authority's Environment Protection Manual for Authorised Officers: Technical Section Small Business (Car Washing Waste) o Environment Protection Authority's Environment Protection Manual for Authorised Officers - Technical Section Water (Bunding and Spill Management) Reason: To ensure that wastewater is disposed of in a manner that is not harmful to the environment. (DACHPG05) 78. Loading Within Site All loading and unloading operations shall be carried out wholly within the confines of the site and within the approved loading areas, at all times. Reason: To ensure that deliveries can occur safely within the site and does not adversely affect traffic or pedestrian safety and amenity. (DACPLG20) 79. Delivery Hours No deliveries, loading or unloading associated with the premises are to take place between the hours of 10pm and 6am on any day. Reason: To protect ensure the acoustic amenity of surrounding properties. (DACPLG21) 80. Positive Covenant for Waste Services A positive covenant shall be created on the title of the land to Lot 1 in the proposed torrens title subdivision requiring the proprietor of the land to provide access to the waste storage facilities prior to the issue of an Interim/Final Occupation Certificate. The terms of the positive covenant are to be prepared to Council's standard requirements, (available from Warringah Council), at the applicant's expense and endorsed by Council prior to lodgment with the Department of Lands. Warringah Council shall be nominated as the party to release, vary or modify such covenant. Reason: To ensure ongoing access for servicing of waste facilities CONDITIONS THAT MUST BE COMPLIED WITH PRIOR TO THE ISSUE OF ANY SUBDIVISION CERTIFICATE 81. Creation of allotments Prior to the issue of any subdivision certificate, a final occupation certificate for the approved development of housing for older people or people with a disability on Lot 1 must be issued. Reason: To prevent the creation of allotments with substandard areas and to ensure that the development is for the purpose of housing for older people or people with a disability. 82. Provision of Services for Subdivision The applicant is to ensure all services including, water, electricity, telephone and gas are provided, located and certified by a registered surveyor on a copy of the final plan. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of the Subdivision Certificate. Reason: To ensure that utility services have been provided to the newly created lots. (DACENH03) 83. Plans If the Subdivision Certificate Application is lodged with Council, the final plan and nine (9) copies of the strata plan are to be lodged with the application, or if the Subdivision Certificate is obtained from an Accredited Certifier, a copy of the endorsed Subdivision Certificate plan is to be forwarded to Council within 14 days of lodgement with the "NSW Land and Property Information Division". Reason: To ensure compliance with the Conveyancing Act 1919. (DACBCH22) 84. To enable the lodgement of the final plan at the NSW Land and Property Information Department the Subdivision Certificate shall not be issued until the Final Occupation Certificate for the approved development. Reason: To ensure that the plans relate to approved development (DACENH23) 85. Waste collection services. An Section 88B instrument under the Conveyancing Act is to incorporated on the title of the property which shall include Council's standard wording for waste collection indemnifying from damage or liabilities from Council or Council contractor vehicles and staff for waste collection purposes. The draft 88B instrument is to be submitted to Council for approval prior to the issue of the subdivision certificate. Reason: To provide satisfactory waste collection services. [Special condition] 86. Subdivision Certificate Application Prior to the issue of the Subdivision Certificate, a completed Subdivision Certificate form, a final plan of subdivision prepared in accordance with the requirements of the Conveyancing Act 1919 are to be submitted to Council. Nine copies of the final plan of subdivision are to be submitted. All plans of survey are to show connections to at least two Survey Co-ordination Permanent Marks. The fee payable is to be in accordance with Council's fees and charges. Reason: Statutory requirement of the Conveyancing Act 1919. (DACENH24) 87. Stormwater Drainage and Utility Services Plan A plan of subdivision identifying the location of water, gas, telephone, electricity and stormwater drainage in relation to boundaries and/or relevant easements, prepared by a registered surveyor is to be submitted to Council. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of the Subdivision Certificate. Reason: To ensure that services have been provided with appropriate easements as required by the Conveyancing Act 1919. (DACENH10) 88. Survey Plan - Construction Identification A declaration by a registered surveyor shall be provided to Council as evidence that all construction has been effected within the appropriate property, easement boundaries and rights of carriageway. This shall be in the form of a copy of the final subdivision or easement plan, with the distances from the boundaries to the edges of these structures endorsed in red thereon and signed by the surveyor. Details demonstrating compliance are to be submitted to the Principal Certifying Authority prior to the issue of the Subdivision Certificate. Reason: To ensure accurate location of buildings, access and services. (DACENH12) 89 Easement for Drainage An easement for drainage (under the provisions of Section 88B of the Conveyancing Act) is to be created on the title to the common property in proposed strata plan applying to proposed lot 1 to ensure all drainage infrastructure is located within the appropriate easement(s). The terms of the easement shall be prepared at the applicant's expense and provided to Council by instrument in registrable form prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such restriction. The Council shall execute the instrument at the same time the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan. Details demonstrating compliance with such provision are to be submitted to the Principal Certifying Authority prior to the issue of the Occupation Certificate. Reason: Council's Subdivision standards and statutory requirements of the Conveyancing Act 1919. (DACENH16) 90. Easement for Services An easement for services (under the provisions of Section 88B of the Conveyancing Act) is to be created on the title to the common property in proposed strata plan applying to proposed lot 1 to ensure all utility services are located within the appropriate easement(s). The terms of the easement shall be prepared at the applicant's expense and provided to Council by instrument in registrable form prior to the issue of an occupation certificate. Warringah Council shall be nominated as the party to release, vary or modify such restriction. The Council shall execute the instrument at the same time the strata certificate is issued or promptly after being provided with a copy of the strata certificate if the strata certificate is given by a private Certifier, so that the instrument may be registered at the same time as the registration of the strata plan. Details demonstrating compliance with such provision are to be submitted to the Principal Certifying Authority prior to the issue of the Occupation Certificate. Reason: Council's Subdivision standards and statutory requirements of the Conveyancing Act 1919. (DACENH18) __________________________ J S Murrell Commissioner of the Court 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.