Land and Environment Court New South Wales Medium Neutral Citation: Sunland Developments (No 28) Pty Ltd v Northern Beaches Council (formerly Pittwater Council) [2016] NSWLEC 1460 Hearing dates: 23-25 May, 2016 Date of orders: 28 September 2016 Decision date: 28 September 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. 177/15, for a Community Title subdivision to create 79 residential allotments, associated civil engineering works, road construction, drainage works and the construction of 20 two-storey semi-detached dwellings and 59 two-storey attached dwellings on the resultant lots, at 18 Macpherson Street, Warriewood, is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1, A and V, are returned. Catchwords: DEVELOPMENT APPLICATION: Community Title subdivision to create 83 residential allotments and semi-detached dwellings; whether the internal road design is acceptable; whether creekline corridor design is acceptable; whether the water management plan and flood planning are acceptable; staging of the proposal. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 Category: Principal judgment Parties: Sunland Developments (No 28) Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: Mr A. Galasso SC (Applicant) Ms M. Carpenter barrister (Respondent) Solicitors: Hall & Wilcox Lawyers (Applicant) King & Wood Mallesons (Respondent) File Number(s): 2016/00151183 (formerly 10754 of 2015) Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 177/15 for a Community Title subdivision to create 83 residential allotments (amended to 81 residential allotments, exhibit V), associated civil engineering works, road construction, drainage works and the construction of 22 two-storey semi-detached dwellings and 61 two-storey attached dwellings (amended to 59, exhibit V) on the resultant lots (the proposal) at 18 Macpherson Street, Warriewood (the site) by Northern Beaches Council (the Council). 2. The appeal was subject to mandatory conciliation on 24 November 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 8 February 2016, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 11 March 2016 for the applicant to rely on the amended proposal. Issues 1. The Council's contentions in the matter can be summarised as: * The one way internal road design, layout and road reservations widths are unacceptable because the layout is inefficient, impractical, inconvenient and incorporates poor circulation; * The proposed creekline corridor design and treatment and the interface between the creekline and residential allotments is unacceptable because buildings, decks and fence structures encroach onto the outer private buffer riparian area of the creekline corridor (private riparian buffer). The inner creekline corridor design detail does not adhere to Council's requirement that it be restored to a natural watercourse; * The submitted Water Management Plan and Flood Risk Management Report are not acceptable; and * The internal streetscape, amenity and design are not acceptable. The site and its context 1. The site is on the north-western side of Macpherson Street, Warriewood, between Brands Lane and Garden Street and backs onto Narrabeen Creek. The site is trapezoid-shaped with an irregular rear boundary following the former centre line of Narrabeen Creek. The site has a frontage of 148.37m to Macpherson Street and an area of 3.009 hectares, with an average depth of approximately 198m. 2. The site is currently vacant and earthworks have been carried out under an existing consent. 3. Adjoining the site to the north-west is the Flower Power Nursery and adjoining the site to the south-east is Foley's Nursery. 4. Land on the opposite side of Narrabeen Creek and the opposite side of Macpherson Street has been developed for residential purposes. The proposal 1. The proposal (exhibit V) is for a Community Title subdivision to create 81 residential allotments, associated civil engineering works, road construction, drainage works and the construction of 22 two storey semi-detached and 59 two storey attached dwellings on the resultant lots. 2. The main entry axis road into the proposal runs north-south and has a 16.3m wide road reservation, with 6m wide 2-way carriageway lane. The one-way circulation roads are configured in a figure 8 to the east and west of the main entry axis road, with an 8.5m road reservation. There are dead-end short roads in the four corners of the site, each to access two or three dwellings, with 4.7m wide road reservation. 3. The amended proposal includes 40 visitor car parking spaces distributed around the site. 4. Each lot is to be developed with a two storey attached or semi-detached dwelling with five dwelling types proposed, ranging from three bedrooms/single garage to four bedrooms/double garage. Planning framework 1. The site is zoned R3 Medium Density pursuant to Pittwater Local Environment Plan 2014 (LEP 2014) and the proposal is permissible with consent. The objectives of the R3 zone are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses. 1. Land to which LEP 2014 applies may be subdivided only with development consent, at cl 2.6. 2. The height of buildings development standard for the site is 10.5m (Height of Buildings Map Sheet HOB_012 LEP 2014). The objectives of the height of buildings cl 4.3 are as follows: (1) The objectives of this clause are as follows: (a) to ensure that any building, by virtue of its height and scale, is consistent with the desired character of the locality, (b) to ensure that buildings are compatible with the height and scale of surrounding and nearby development, (c) to minimise any overshadowing of neighbouring properties, (d) to allow for the reasonable sharing of views, (e) to encourage buildings that are designed to respond sensitively to the natural topography, (f) to minimise the adverse visual impact of development on the natural environment, heritage conservation areas and heritage items. 1. At sub-cl 4.3(2F), despite subclause (2), development on land identified as "Area 6" on the Height of Buildings Map (the site) must not exceed 8.5m at the street frontage. 2. Part 6 of LEP 2014 Urban release areas, includes the following objectives for the Warriewood Valley release Area: (a) to permit development in the Warriewood Valley Release Area in accordance with the Warriewood Valley Strategic Review Report and the Warriewood Valley Strategic Review Addendum Report, (b) to ensure that development in that area does not adversely impact on waterways and creek line corridors, protects existing native riparian vegetation and rehabilitates the creek line corridors, (3) Development consent must not be granted for development on land in a buffer area or sector or at an address mentioned in Column 1 of the table to this clause unless the consent authority is satisfied that the total number of dwellings shown opposite that buffer area, sector or address in Column 2 of that table will be erected. 1. Column 1 at sub-cl 6.1 includes Sector 302, which is the site. Column 2, number of dwellings to be erected, for Sector 302 states not more than 84 dwelling or less than 66 dwellings. 2. The dictionary of LEP 2014 includes the following relevant definitions: attached dwelling means a building containing 3 or more dwellings, where: (a) each dwelling is attached to another dwelling by a common wall, and (b) each of the dwellings is on its own lot of land, and (c) none of the dwellings is located above any part of another dwelling. Note. Attached dwellings are a type of residential accommodation—see the definition of that term in this Dictionary. landscaping material supplies means a building or place used for the storage and sale of landscaping supplies such as soil, gravel, potting mix, mulch, sand, railway sleepers, screenings, rock and the like. Note. Landscaping material supplies are a type of retail premises—see the definition of that term in this Dictionary. semi-detached dwelling means a dwelling that is on its own lot of land and is attached to only one other dwelling. Note. Semi-detached dwellings are a type of residential accommodation—see the definition of that term in this Dictionary. 1. Pittwater 21 Development Control Plan 2014 (DCP 2014) relevantly includes the following in relation to the Warriewood Valley Release Area: Desired Character The Warriewood Valley Land Release Area will be developed into a desirable urban community in accordance with the adopted planning strategy for Warriewood Valley, and will include a mix of low to medium density housing, industrial/commercial development and open space and community services. Future development is to be located so as to be supported by adequate infrastructure, including roads, water and sewerage facilities, and public transport. Future development will maintain a building height limit below the tree canopy and minimise bulk and scale. Existing and new native vegetation, includ9ng canopy trees, will be integrated with the development. Contemporary buildings will utilise façade modulation and/or incorporate shade elements, such as pergolas, verandahs, and the like. Building colours and materials will harmonise with the natural environment. Development will be designed to be safe from hazards. The creeklines, roads, and open space areas will form the backbone of the new community, complemented with innovative water management systems, the natural environment, pedestrian/cycle path network, public transport, and recreation facilities. Development will incorporate native canopy trees and vegetation to minimise the bulk and scale of development and enhance the new community with a high quality landscape character. Development will integrate with the landform and landscape. Vehicular pedestrian and cycle access within and through the area will be maintained and upgraded, the design and construction of roads will manage local traffic needs, minimise harm to people and fauna and facilitate co-location 1. B3.23 Climate Change (Sea Level Rise and Increase Rainfall Volume) of DCP 2014 applies to land identified as being within the Warriewood Valley Land Release Area and uses including attached and semi-detached dwellings. The relevant outcomes of the control are to protect people and the natural environment. The control applies where the intensification of development is proposed, including an increase in the number of dwellings. Two scenarios are to be considered, 1. Impacts of sea level rise only and 2. Impacts of sea level rise combined with increased rainfall volume. 2. B6.2 of DCP 2014, Access Driveways and Works on the Public Road Reserve, requires the location of driveways to maximise retention of trees and native vegetation in the road reserve. 3. C1.2 of DCP 2014, Safety and Security, requires walkways and landscaping to be used to delineate site boundaries and direct visitors to the correct entrance and away from private areas. 4. C6.7 of DCP 2014, Water Management and Creekline Corridors – Warriewood Valley Release Area, relevantly includes the following outcome and controls: A network of multi-functional living creekline corridors on Narrabeen Creek, Fern Creek and Mullet Creek for the creek, floodway, flora and fauna habitat, water quality treatment, cyclist and pedestrian access and drainage, linking the Warriewood escarpment with Warriewood Wetlands and Narrabeen Lagoon. A 25 metre private buffer strip is to be provided on each side of the multi-function creekline corridor and is to be retained in private ownership. Water quality control ponds must be substantially within this 25 metre private buffer strip, and may contain other water quality treatment measures. Ownership of this 25 metre private buffer strip and the ongoing management and maintenance of all water management facilities associated with the development is to remain in private ownership and is the responsibility of the owners of the land/development. Dwellings, garages and other built structures must not be located within the private 25 metre buffer strip. A landscape plan for the creekline corridor adjoining the sector, buffer area or development site must be prepared. Variations The width of this private buffer strip may be less than 25metres provided the outcomes of this control are met and subject to this buffer strip having an average 25 metres width. 1. C6.8 of DCP 2014, The Road System – Warriewood Valley release Area includes the following relevant outcomes and controls: Development occurs in an efficient and orderly manner. A range of lot sizes and dwelling types are provided to foster a diverse community and interesting streetscape. To efficiently utilise land to achieve the target dwelling yield. Proposed residential lots achieve a high level of amenity including reasonable solar access. Surveillance of public open space is facilitated. An ecologically sustainable environment which reduces the use of fossil fuels and increase the use of renewable energy is developed and maintained. Active modes of transport and accessibility are encouraged through design. Design criteria All roads in Warriewood Valley must be designed with physical constraints to lower the vehicle speeds by variation win width and alignment, street length, and pavement treatment, enhanced landscaping, weight limits, speed limits, reduced conflict points and safe crossing areas. The street pattern must provide direct, safe and convenient pedestrian and cyclist access from housing and employment areas to public transport stops. The street and subdivision layout should minimise fuel use by reducing travel distances and maximising public transport effectiveness. In order to address these objectives and controls, the following road hierarchy is applicable: •Located street are located within the sections services up to 2000 vpd, •Access streets are located within sectors services up to 300 vpd, •Access lanes are located within sectors servicing up to 100 vpd, •Entry streets – for the primary entrance street to a Sector, Buffer Area or development site Reference should be made to the Council's Warriewood Valley Roads Masterplan (2006). Where a subdivision is to be created as a community title allowing full public access, the design and construction of the road and pedestrian network shall provide for full pedestrian vehicular access and on-road related parking similar to a function as a public road network. 1. C6.14 of DCP 2014, Form of Subdivision and Subdivision Layout – Warriewood Valley Release Area, includes the following relevant outcomes and controls: Superior design is achieved. Solar access and microclimatic benefits to residential lots are maximised. Topographical features, site characteristics and constraints, and special features within a sector are considered. Housing diversity and choice are provided. Non-motorised modes of transport and accessibility are encouraged through design. Connectivity within the sector ensures most homes are within 400 m walking distance to bus stops. Lot design Lots must have the appropriate area and dimensions for the siting of dwellings, canopy trees and other vegetation, private outdoor space, rainwater tank and vehicular access and on-site parking. Lots must be of sufficient size and orientation with the main living room(s) able to receive northern sunlight in winter. The subdivision layout is to incorporate adequate pedestrian, cycle and vehicle links to the road network, public transport nodes, pedestrian/cycle network and public open space areas. The street and subdivision layout should minimise fuel use by reducing travel distances and maximising public transport effectiveness. 1. C6.17 of DCP 2014, Social Environment Warriewood Valley Release Area, includes the following relevant outcomes and controls: A high quality of life is achieved for residents moving into Warriewood Valley. Liveable communities which foster a strong sense of community and facilitate social interaction amongst residents. Provision of opportunities for residents to meet informally. Provision of adequate private open space in particular adequate common open space areas and recreation facilities…, which are appropriate to the needs of residents, including •Designated outdoor play areas of children, including areas for children to ride bikes which are located within sight and calling distance of most dwellings; •Arranging play areas and communal recreation areas to minimise any adverse effects on adjacent dwellings; •Providing outdoor areas where residents can walk and/or sit quietly; •Providing spaces for young people to meet and socialise. 1. C6.22 of DCP 2014 Landscaping the Proposed Public Road Reserve includes a control for street tress to be planted on the road reserve frontage at 6m centres. C6.23 Landscaped Area includes as the control that the total landscaped area within a residential sector, buffer area or development site must be 50%. D16.6 Landscaped Area – Warriewood Valley Residential Sectors includes a control that the total landscaped area on individual residential allotments must be 45% of the site area. 2. D16.1 of LEP 2014, Character as viewed from a public place, includes controls that buildings fronting streets or creekline corridors must have a street presence and that garages and carport must not be the dominant site feature when viewed from a public place. 3. Appendix 3 Warriewood Valley Release Area Planning Context and Criteria includes at 2.3(iii) that Sector 302 is to provide 32 dwellings per hectare, the applicant submitting that this is a significantly higher density rate that nearby development sites that Council has compared the proposal to. 4. The Warriewood Valley Roads Masterplan (2015 Review) ("Roads Masterplan") is relevant to the proposal. The Roads Masterplan includes at Section 2, Road Cross Sections, that community title roads shall provide for unrestricted access to all private dwellings and recreation reserves and shall have road cross sections as specified in the Roads Masterplan for the applicable traffic volume, as set out below. The sub-arterial streets in the Warriewood Valley Urban Land Release area include Macpherson Street. Local Street Access Street Laneway (max length 80m) Traffic Volume 2000 vehicles/day Less 300 vehicles/day Less 300 vehicles/day Max no dwellings 200 30 30 Traffic lane width 7.5m 7.5m 5.5m Footpath width 1.5m one side 1.5m one side - Verge width 4.25m both sides 2.5m both sides 0.75m both sides 1. Appendix A3 of the Roads Masterplan includes a typical cross-section for 'Local Streets', which has 4.25m from the property boundary to the carriageway on both sides of the street (including a footpath on one side of 1.5m) and a carriage way of 7.5m, resulting in a total distance between property boundaries of 16m. 2. Appendix A4 of the Roads Masterplan includes a typical cross-section for 'Access Streets', which has 2.5m from the property boundary to the carriageway on both sides of the street (including a footpath on one side of 1.5m) and a carriage way of 7.5m, resulting in a total distance between property boundaries of 12.5m. 3. The Warriewood Valley Urban Release Area Landscape Masterplan and Design Guidelines (Public Domain) ("Landscape Masterplan") shows a proposed shared path at the Macpherson Street frontage of the site and identifies plant species for landscape development along creek corridors and creekline corridors. The plans in the Landscape Masterplan for a local street and access street show street trees planted on both sides of the carriageway at 7 to 15m centres. The Landscape Masterplan states, 'Street trees of adequate scale (height and spread) are the fundamental strategy by which Council's objectives of "Bushland in the Valley" and quality of living and working environment can be realised.' 4. The Warriewood Valley Urban land Release Water Management Specification ("Water Management Specification") includes in the forward that the document has been prepared to ensure that the development of the Warriewood Valley is carried out in an ecologically sustainable manner within the realm of the water environment. At 4.3.3. 'Assessment of Developed Conditions', 'compliance with pollutant export goals is to be determined by either a zero net increase in exiting load, or an increase of 20% on the load if the catchment was forested, whichever produces the minimum developed load.' 5. The Water Management Specification includes, as 'Essential Design Requirements', Corridor Widths: Average creek corridor widths have been set in the Warriewood Valley Development Control Plan generally at a 100m corridor width. Generally, public ownership corridor widths have been set at 50m on all creeks with the exception of some sections of Narrabeen Creek upstream of the proposed detention basin site, where the width is 30m. Private ownership buffers are required in all areas of development. Council has produced detailed documents, which show the extent and locations of corridors within the release. The Section 94 plan for Warriewood Valley details the corridor widths required for each sector. Average corridor widths are proved because these will vary according to the adjoining land use. Integration of all the functionality aspect of the corridors may necessitate a varying of private buffer strip width, which is encouraged. The criterion for evaluation of the average width for the private buffer strips is that the average width over the total corridor length is 25m. Concept Plans showing the expected aspect of the corridor are provided in Figures 2, 3 (reproduced below). 1. The Water Management Specification relevantly includes the following: Channel Sections and Batter Slope Requirements The channel sections are to be constructed broadly in line with the present channel alignment and bed levels, with some straightening where severe restrictions presently exist. The aim of the works is to create a gently meandering stream within the multi-use corridor. Design batter slopes are to be no greater than the following (depending on the bank materials and any proposed stabilisation works): · 1V:3H for regularly wet areas and 1V:6H for water access points (defined as being the level to which daily flows rise to up to the 50% AEP or 1 in 2 year flow) · 1V:6H for frequently inundated areas (defined as being up to 20% AEP peak flood level) · 1V:8H for areas above the 20% AEP peak flood level. It is recognised that in some instances, the batter slopes may need to be steeper than those prescribed above. It is expected that the majority of the batter slopes would conform to those prescribed above. Where constraints exist to result in steep batters for short sections of the environmental flow section of the creek (e.g. 1V:1H or even 2V:1H), these batters should be stabilised in an appropriate manner. In the case where steep batters cannot be avoided without a transitional area between cycleways/pedestrian tracks, it is recommended that dense vegetation be planted on and adjacent to the banks of the environmental flow channel to provide a natural barrier for safety purposes. Note that design flowrates at the upstream and downstream ends of each sector for various events are listed in Appendix B. A corresponding list of the type of vegetation required in these areas can be found in the Landscape Masterplan for Warriewood Valley (2000). 4.6.3. On-Site Detention Requirements Detention requirements have been determined on a sector by sector basis, since the hydrological characteristics of each sector vary considerably across the Valley. A RAFTS model of the Valley was utilised to consider the pre-development and post development hydrology of each sector and the overall Valley. Full details of the modelling and derivation of the on-site detention requirements can be found in Appendix A The requirements for each sector include (Appendix A): · Minimum site storage requirements (SSR) listed in Table A.1 · Permissible site discharges not to be greater than those listed in Table A.2 for all storm events listed · Maintenance of the base case hydrograph shape · Use of the Australian Rainfall and Runoff Method (1987) to determine compliance with the requirements. During the preparation of the Water Management Report for the sector a model is to be established that: · matches the peak sector outflow discharge to the pre-development condition of the sector within ± 5% of the peak reported in Appendix A · shows the pre-development hydrograph and the developed hydrograph with the tail cut at the duration of the storm · the developed hydrograph is to be no more than ± 10% of the pre-development hydrograph at any location on the rising or falling limb. All stormwater volume control structures and detention basins are to be above the 1%AEP flood levels. (Note that Water Quality control ponds can be below the 1%AEP flood level, but are to be above the 20%AEP flood level but wholly within the private buffer zone - See Section 4.5, Table 4.3 and Section 4.3.2). Procedures for the design of detention are to be in accordance with Council's engineering DCP and Australian Rainfall and Runoff (1987, 1998, 1999). Expert evidence 1. The applicant relied on the expert evidence of Mr Scott Barwick (planning and urban design), Mr Graham Pindar (traffic), Mr Phillip Conacher (ecology), Mr Darren Lyons (water management and flooding), Mr Michael Shaw (stormwater) and Mr Andrew Halmarick (surveyor). 2. The Council relied on the expert evidence of Mr Gordon Edgar (planning), Mr Geoff Baker (urban design), Mr Tim Rogers (traffic) and Ms Louise Collier (water management and flooding). Consideration Internal road design 1. The Council contends that the proposed one-way internal road design, layout and road reservation widths are unacceptable, for the following reasons: * The proposed one-way, single lane internal road design is inefficient, inconvenient and incorporates poor circulation, poor geometry, and a confusing internal street hierarchy. It provides inadequate vehicular circulation space for the safe, convenient and efficient passage of vehicles through the site. No details have been provided of the passing bays. The proposal is not consistent with the Roads Masterplan's 'Local Street' cross-section. * The one-way internal road design and maximum speed of 15km/hr is impractical, unsafe and inconvenient and it is likely that residents will take 'short cuts' contrary to the one-way system. The design speed requires RMS approval which has not been obtained and no details are provided of traffic calming facilities. * The proposed one-way system fails to provide adequate, safe and convenient driveway manoeuvring area for all of the proposed residential allotments. The internal road design is reliant upon the use of continuous mountable kerbing and trafficable grass cell verges for parking and manoeuvring. * The proposed internal road design fails to provide sufficient and appropriate on-street parking to ensure that informal parking in street verge manoeuvring areas is discouraged. 1. The amended proposal provides 40 visitor parking spaces distributed around the site (exhibit X) and the traffic experts agreed that 40 spaces is sufficient on-street parking for visitors and exceeds the 1 space per 3 dwellings requirement in DCP 2014. The experts agreed that the visitor parking spaces should be differentiated from the turf cells by being paved, in order to discourage informal parking within the turf cell areas. 2. The traffic experts agreed that the amended proposal provides a rational and acceptable road hierarchy capable of servicing the proposal, with a central two-way roadway, one-way loops elsewhere and satisfactory access to driveways. The experts agreed that five speed humps should be added and to the design shown in Attachment 2 of their joint report (exhibit 7). 3. The experts agreed that the proposed roadway can accommodate an 8.8m MRV without traversing the grass cell areas if minor adjustments are made at bends in the roadway (Attachment 3, exhibit 7). The experts agreed that the amended proposal provides satisfactory access for service vehicles. 4. The experts agreed that the footpath width of 1m is adequate for people with ambulant disabilities and allows passage for 80% of people who use a wheelchair in accordance with the relevant Australian Standard. 5. I accept Mr Galasso's submission that the Roads Masterplan is a technical reference document, referred to by DCP 2014 in regard to engineering road specifications, and broadly applies across the Warriewood Valley Release Area. It is not put before Council for adoption when it is amended and it is not the subjected to public consultation. I accept the agreements of the traffic experts and the proposal has been amended in accordance with their agreed evidence. Creekline corridor design, treatment and interface with proposed residential lots 1. The Council contends that the proposed creekline corridor design and treatment as well as the interface between the creekline corridor and the residential allotments is unacceptable for the following reasons: * The proposed subdivision relies upon the inclusion of portions of the backyard areas and some building footprints in the private riparian buffer, outside the inner 25m creekline corridor. This is likely to have unacceptable impacts on the desired outcome of the planned rehabilitation of the ecology and biodiversity of the creekline corridor. * The inner creekline corridor design detail does not adhere to Council's requirement that it be restored to a natural watercourse with a batter slope and cross section details every 10m based on hydraulic modelling. 1. Ms Collier agreed with the applicant's experts that the proposal achieves the requirement for a 25m public riparian corridor, shown as yellow shading on exhibit 8. According to Ms Collier, 14 allotments lie within the private riparian buffer of the creekline corridor. 2. The water management and flooding experts disagreed on the acceptability of the incursion of allotments and building envelopes into the 25m private riparian buffer. Ms Collier referred to DCP 2014, which states at C6.7, 'Dwellings, garages and other built structures must not be located within the private 25m buffer strip', which is in accordance with the Water Management Specification. According to Ms Collier, the purpose of the 25m private riparian buffer along Narrabeen Creek is to assist in improving water quality, reduce stream warming by providing shade from canopy trees and enhance the biodiversity habitat and landscape values. In her view, having any part of a residential lot forming part of the private riparian buffer is completely inconsistent with the intention of the buffer. 3. The applicant's experts justified the incursion of building footprints into the private riparian buffer by demonstrating that other nearby developments had similarly encroached on the 25m private riparian buffer along Narrabeen Creek. According to Mr Hallmark, the creek has an irregular line and the 50m alignment of the riparian corridor and private buffer has been measured from the realignment of the centreline of the creek as surveyed. The northern allotment boundary does not directly correlate with the current centreline of Narrabeen Creek. 4. The private riparian buffer can be provided as an average width over the total corridor length, in both DCP 2014 at C6.7 and the Water Management Specification 'Corridor Widths'. The extent of the 25m private riparian buffer is plotted on the site plan of the proposal (DA012 exhibit A and shown on exhibit 8) and shows part of the allotments and building footprints of the attached dwellings and semi-detached dwellings, fronting the creek, as encroaching on the 25m private riparian buffer. In Ms Collier's opinion, water treatment facilities may be provided in the private riparian buffer. 5. I accept and prefer Ms Collier's evidence that the provision of an average 25m private riparian buffer strip is necessary to maintain and improve water quality of the creek, buffer adjacent land uses from the creek and allow for the passage of fauna. According to Ms Collier, the deletion of the semi-attached dwellings that encroach on the private riparian buffer in the north-western corner of the site (Lots 84 and 85) would result in the proposal coming closer to meeting the average 25m private riparian buffer. I accept her suggestion that the pair of semi-attached dwellings in the north-western corner of the site and their access roadway be deleted so that the proposal achieves a more generous private riparian buffer, as the combined area of the deleted lots is 733.11sqm which is added to the area of the deleted access roadway (exhibit D). 6. The applicant submits that if I am minded to accept Ms Collier's suggestion of deleting the two attached dwellings, then they could be replaced by smaller attached dwellings, however, deleting the semi-detached dwellings on the north-western corner of the site will have the added benefit of providing a pleasant, open space area for a communal recreation facility, overlooking the riparian corridor of Narrabeen Creek, in accordance with the relevant outcomes and controls of C6.17 of DCP 2014 and Council's contention number 5(g) (exhibit 1), as the proposal does not include an area of communal open space. For this reason, I do not accept the applicant's submission to replace the semi-detached dwellings with smaller attached dwellings. There are 8 visitor parking spaces directly adjacent to the proposed communal recreation facility area to provide parking for visitors to the communal recreation facility. 7. The applicant does not oppose the imposition of condition B4 requiring fencing to be made passable to native wildlife, which addresses the issue of fencing of lots within the private riparian buffer, raised by the Council and Ms Collier. 8. The applicant provided revised cross-sections with peak flood levels (exhibit Y) in response to Council's contention regarding the inner creekline corridor design. The Council seeks the imposition of the following deferred commencement condition on any consent: An amended Riparian Corridor Vegetation Management Plan is required to be submitted making provision for a 25m wide inner riparian corridor in compliance with the requirements of Section C6.7 of PDCP 21 and consistent with the staging plan for Stage 1 numbered 1735-1G L04 and drawn by Craig & Rhodes. In addition, species selected must include species from the planting lists of the Warriewood Valley Landscape Masterplan. The amended plan is also to specify the removal of non-indigenous tree species as part of the rehabilitation/restoration works. Revised creekline corridor cross sections are to be provided, depicting the transition to the neighbouring properties either side of the development including the levels to identify the cross section has been prepared in accordance with the Warriewood Valley Water Management Specification 2001. Provision of an updated flood impact assessment to accompany the revised plans showing flood levels for the 2, 5, 20 and 100 year ARI and the Probable Maximum Flood event. Pittwater Council must also approve the design plans for the creekline corridor as the creekline rehabilitation works and creekline corridor land dedication are identified under the Warriewood Valley Section 94 Contributions Plan (Number 15 Amendment 16, Revision 1). 1. I accept the applicant's submission that the condition, being one of a number of conditions sought by the Council as deferred commencement conditions, need not be deferred commencement conditions. I do not accept the applicant's submission that the second paragraph be deleted from the conditions of consent. 2. I am satisfied that the imposition of these conditions dealing with the creekline corridor will address Council's contention regarding the inner creekline corridor design detail and that it is appropriate to do so as part of the matters to be satisfied prior to the issue of a Construction Certificate. Landscape design 1. The Council contends that the submitted landscape information and treatment generally of the proposal is not acceptable for the following reasons: * There is no detail as to how the landscaped area calculation of 54% was calculated. The Council is concerned that the applicant has included elements in the calculation such as permeable paving, total areas of step driveways, gravel service yards, side setback areas and areas to be occupied by air-conditioning units. The Council is concerned that the same elements have been included in the calculation of the 45% of lots required to be landscaped. * The proposal incorporates a number of areas claimed as 'landscaped area' that would not be suitable for canopy trees or plantings capable of creating an acceptable street character or softening the built form. * There is insufficient detail of the Macpherson Street frontage landscaping and trees to be retained. * There are inconsistencies between the architectural plans and landscape plan. 1. The planning experts agreed on the following: * Five individual lots do not comply with the minimum 45% landscaped area requirement (lots 33, 34, 37, 71 and 75 [exhibit P]) and the balance of the lots meet or exceed the 45% minimum landscaped area requirement, with the average landscape area provision being 53%. * The inaccuracy between the architectural plans and landscape plans has been corrected in the amended landscape plan DA05 dated 9 May 2016. 1. According to Mr Barwick, 54% of the proposal is provided as landscaped area (Private Lot Area calculations exhibit P). As there is no alternative figure provided by Mr Edgar, I accept Mr Barwick's calculation of landscaped area. 2. Not all areas identified as landscaped area will be suitable for canopy trees. I am satisfied, however, there will adequate opportunities for appropriately scaled canopy trees and screen planting capable of creating an acceptable street character and softening the built form, commensurate with a medium density residential environment, because 74 of the total 79 lots meet the required 45% landscaped area and the average landscape area provision of lots is 53% and the proposal meets the required landscaped area with 54% of the site landscaped area. As the proposal meets the landscaped area requirements of DCP 2014 at C6.23, I am satisfied that the imposition of conditions of consent requiring a detailed landscape plan, as proposed by the Council, will satisfactorily address the Council's contention in relation to landscape design. I do not accept the applicant's submission that condition (b) be deleted as it forms an essential component of the detailed design of the public domain within the proposal. Amended and detailed landscape plans (at minimum scale of 1:200) are to be submitted, including typical detailed sections. The amended detailed landscape plans shall include the following information: a) Macpherson Street landscape plan demonstrating retention of existing vegetation, share path, street tree planting and landscaping, boundary fence treatments including design layout, finished levels, materials selection and plant schedules. Tree planting in Macpherson Street shall be in accordance with the Warriewood Valley Release Area Landscape Masterplan and Design Guidelines Plant Species List, and the following: i. trees selected shall be in accordance with the 'Large Canopy Tree' street corridors plant species list. ii. street trees planted within the road verge placed at 6-12 metre intervals, dependent on location and species. iii. species selected must not interfere with existing or proposed utility services. iv. street trees shall be 75-400 litre in size, depending on selected species and plant location (subject to Council advice). v. tree pit size for tree installation shall be a minimum of 700mm depth and 2.5m wide. vi. tree pit surface shall be planted with native grasses. vii. remaining landscape areas are to be turfed with couch species (weed free) to a maximum 4% grade. b) Internal roads landscape plan demonstrating pathway connections, street tree planting and landscaping, including design layout, finished levels, materials selection and plant schedules. Street tree planting in the internal roads shall be in accordance with the Warriewood Valley Release Area Landscape Masterplan and Design Guidelines S-3, and the Plant Species List, as follows: i. street trees selected shall be in accordance with the street corridors Plant Species List, being 'Medium Canopy Trees' from the street corridors plant species list. ii. street trees planted within the road verge are to be placed at 6-12 metre intervals, dependent on location and species. iii. species selected must not interfere with existing or proposed utility services. iv. street trees shall be 75-400 litre in size, depending on selected species and plant location (subject to Council advice). v. tree pit size for tree installation shall be a minimum of 700mm depth and 2.5m wide. vi. tree pit surface shall be planted with native grasses. vii. remaining landscape areas are to be turfed with couch species (weed free) to a maximum 4% grade. c) Residential Lots detailed landscape plan demonstrating path connections, internal street tree planting and landscaping (including design levels, materials selection and planting layout and schedules) for all proposed lots. At least one (1) locally native canopy trees are to be planted per lot which will mature at a height no less than 8.5 metres. Species can be chosen from the list provided in the Native gardening booklet on the Council website. The plan must also include the quantity and species of all other proposed plants for the individual lots with a majority (more than 50%) per lot being locally native species. The plan should indicate where the proposed plants/trees will be located in each particular lot. Water Management System 1. The Council contends that the Water Management Plan and Flood Risk Management Plan are not acceptable for the following reasons: * In accordance with B3.23 of DCP 2014, the proposal is to adopt the 1% AEP 30% rainfall intensity and 0.9m sea level rise as the design event. The model results for the 1% AEP, 30% rainfall intensity and 0.9m sea level rise must be better incorporated into the report with additional figures that clearly show the peak depth and water level results for this event in both pre-development and post-development scenarios. An assessment of flood extents both pre and post development are to show that flood affected lots are not created by the proposal. * The cumulative development scenario modelled for the PMF event provides insufficient evidence of negligible impacts. Actual water level impacts need to be presented to show that the cumulative impact of development is acceptable. As a guide, Council adopts a value of 0.05m as the maximum acceptable off-site impact for the PMF event. * Inadequate evidence of an appropriate Flood Emergency Response Plan is provided. The submission should provide a suitable Plan in accordance with the Water Management Specification and the provisions in B3.25 of DCP 2014. * The site coverage calculation is to be based on the site area of 30,090sqm. No site coverage plan or calculations have been included in the proposal. * The pre-development loads for the site under the pre-development condition are over-estimated in the Water Management Report. * Rainwater tanks cannot be used to offset the onsite detention volume. 1. The water management/flooding/stormwater experts agreed on the following and I accept their agreement: * There are no flood affected lots, at the flood planning level, created by the proposal. * The nature of the cumulative impact assessment is indicative and therefore specific water level impacts need not be shown. * The Flood Emergency Response Plan information is to be updated in the Civil Certification (2016) report to make it consistent the Flood Emergency Response Plan information in the BMTWBM (2016) report, which will be updated to meet the provisions identified in B3.25 of DCP 2014. The site will be classified as H1 or H2 life hazard categorisation which requires only minimal assessment. * The total site area of 3.024ha was used in all water management calculations and the impervious area calculation yields a result of less than 50%, which remain the case when the site area is changed to 3.009ha. 1. Ms Collier accepted that the calculation of impervious area is less than 50% but noted this figure is reliant on the pervious portion of the public and private riparian corridor area. 2. The experts disagreed on whether the on-site detention (OSD), should meet a 30% increase in rainfall intensity for climate change in addition to Council's requirement to ensure that the OSD facilities address the 100 year ARI event. 3. The conditions of consent include the following conditions 3 and C20: 3. Amended plans are to be submitted to Council prepared by a qualified Hydraulic Engineer for its approval detailing revised on site detention arrangements and demonstrating how the requirements of the Warriewood Valley Water Management Specification 2001 and the Pittwater 21 DCP will be achieved for the site. The plans are to include/show: • Design drawings, including longitudinal sections for all of the proposed OSD facilities, including details of access for maintenance; • How the system allows for inflows from the catchment up the 100 year ARI plus climate change (30% increase in rainfall intensity) event; • High flow bypass arrangements; • Sufficient detail of the proposed multi-stage outlets; • The 100 year ARI flood level plus climate change in Narrabeen Creek where the OSD is to discharge. C20 Prior to the issue of a Construction Certificate the following documentation is to be prepared and certified by a suitably qualified Hydraulic Engineer: (a) A revised Water Management Report (based on the "Water Management Report" prepared by Civil Certification Pty Ltd, DA Amendment Revision C – Feb 2016, Issue No. 4, dated 8 March 2016) providing detailed designs, plans and the required information for all works needed to achieve full compliance with the Warriewood Valley Water Management Specification February 2001 (WMS (2001)) (for discharge load at existing levels) and Pittwater 21 Development Control Plan including The WMS (2001) document Checklist – Construction Certificate is to be certified and submitted and approved prior to the issue of any Construction Certificate. • The revised Water Management Report is to be certified in accordance with the Warriewood Valley Water Management Specification (February 2001) and submitted to the Council for its records. (b) The detailed design of all works associated with the water management system must provide for a complete water management system that meets the objectives and requirements of the Warriewood Valley Water Management Specification (February 2001), the revised Water Management Report referred to in this condition and, the Warriewood Valley Integrated Water Management Strategy. The detailed design of the water management system is to include and provide for: - Staging of the works to ensure that the objectives of the Warriewood Valley Water Management Specification are achieved prior to the release of any Subdivision Certificate. - compliance with relevant Australian Standards and contemporary engineering best practice. - The stormwater drainage design is to incorporate pipe capacities to allow for an additional 30% increase in rainfall intensity for the climate change scenario. 1. The applicant seeks the deletion of condition 3 and the insertion of the underlined 'for discharge load at existing levels' and the deletion of the final sentence of condition C20, 'The stormwater drainage design is to incorporate pipe capacities to allow for an additional 30% increase in rainfall intensity for the climate change scenario.' 2. I accept the applicant's insertion 'for discharge load at existing levels' in the condition. 3. According to Mr Shaw, the issue raised by the Council is related to flooding and he notes Ms Collier's agreement that there are no flood affected lots, at the flood planning level, created by the proposal. In his view, Council's requirements exceed best practice and the two guidelines used to size on-site detention; DCP 2014 B5.7 and the Water Management Specification do not refer to an inflated requirement to allow for future climate change. In Mr Shaw's opinion, allowing for an additional 30% increase in rainfall intensity for the climate change scenario adopts the extreme prediction and it will require providing infrastructure that will not be required for at least another 30 years or more or possibly not at all. According to Ms Collier, the 30% increase in rainfall intensity for climate change scenario was adopted by Council at a Council meeting in 2010. She agreed with Mr Shaw that the 30% figure represents a conservative upper limit; however it is not unreasonable in her view as it relates to the intensification of use. Ms Collier is of the view that the 30% allowance for climate change can be accommodated by the proposal. 4. Firstly I note that B5.7 of DCP 2014 excludes the Warriewood Valley, although I accept that Mr Shaw referred to the provisions of the Council's DCP and policies not specifically in regard to the proposal, but in order to demonstrate that a requirement for increasing the OSD of the proposal to deal with climate change to the extent proposed by the Council is an onerous requirement. Secondly, it may well be the case, as Mr Shaw asserts, that the Council seeks a value in the 30% allowance for climate change that exceeds best practice; however B3.23 of DCP 2014 must be given weight (Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 at [87]) and if the applicant wishes to apply an alternative percentage or no additional capacity at all, the onus is on the applicant to demonstrate that the proposal is a reasonable alternative solution that achieves the objects of the relevant standard of the DCP for dealing with this aspect of the development. I do not accept that it is unreasonable for a subdivision of this scale to be required to size infrastructure that may not be fully utilised until well into the future, as the subdivision is permanent. I am not satisfied that the evidence before me adequately demonstrates that the proposal is a reasonable alternative to Council's requirement to provide an additional 30% allowance for climate change. I accept and prefer the evidence of Ms Collier that the OSD facilities should address the 100 year ARI event plus a 30% increase in rainfall intensity for climate change and this requirement is to be retained in conditions 3 (to be moved to Part 2) and C20. 5. The experts disagreed on whether the pollutant loads under the pre-development condition are over-estimated in the Water Management Report. 6. The conditions of consent include the following condition regarding post development pollutant loads, opposed by the applicant, 4(f) MUSIC modelling demonstrating the compliance of the proposed water quality management measures with the requirements of Section 4.3.3 of the Water Management Specification, adopting the baseline load condition of a Forested land use load + 20%. 1. According to Mr Shaw, the Water Management Specification requires whichever is the lesser of the two baseline cases, pre-development or forested + 20%. In his opinion, forested + 20% is an onerous requirement to impose on the proposal and it would make the development unviable and unable to achieve the minimum 66 dwellings required by LEP 2014. According to Mr Shaw, a zero net increase in existing load is typically used for proposals in the Warriewood Valley area. Ms Collier agreed that the forested + 20% model has not been rigorously applied by the Council. The experts agreed that as the site drains into Narrabeen Lagoon, a sensitive system, the ultimate pollutant load is an important consideration. 2. I accept the applicant's submission that a requirement to achieve compliance with Council's pollutant export goal in this condition of an increase of 20% on the load if the catchment was forested would make the proposal unviable and Ms Collier's evidence that this requirement has not been rigorously applied by the Council. Following the Court's directions on 10 August 2016, the experts redrafted the relevant condition regarding the Water Management System (C21 of Annexure A) to be reasonable and achievable by the proposal. Internal streetscape amenity and design 1. The Council contends that the internal streetscape, subdivision layout and the arrangement and design of built form is not acceptable in regard to the following matters: * The proposed double width garages incorporated into E1 and E2 dwelling are inappropriate given the road layout, small lot sizes and predominantly 9m wide frontages of the lots in which they are proposed. * There are no opportunities to screen garages on PD4 has it has a 0.5m grass cell verge on its northern side. * The overall visual character created by the proposed narrow, one-way road system with negligible street tree planting and minimal space in lots for tree planting is a residential subdivision dominated by built form, hard paving, garaging and parked vehicles. The narrow internal streets result in limited spatial separation between opposing dwellings and an enclosed and cluttered streetscape with substandard footpaths. The cumulative impact of these design issues is a poor standard of amenity for future residents. * There is a poor sense of street address to Lots 24-31 and 84-89 as they have rear lane access and no primary street frontage. * Solar access to private open space for lots 10-22, 33-38 and 70-71 is poor as these areas are likely to only receive 1 hour of sunlights between 9am and 3pm on the winter solstice. * There are visual and acoustic privacy issues due to the small allotments. * A development of small allotments should include an adequate, centrally located, communal open space to encourage a sense of community and provide passive recreation opportunities. 1. According to Mr Rogers, there should be a footpath on the southern side of the dwellings along the northern boundary of the creek (lots 26-31 and 86-89). I accept Mr Roger's evidence that it is likely pedestrians will walk along this east-west street, particularly given the communal recreational facility is to be located in the north-western corner of the site and the applicant is to provide a 1m wide footpath on the southern side of the dwellings along the northern boundary of the creek. The footpath is to extend to Lot 24 to the east. The provision of a footpath on the southern side of these allotments will address Council's contention regarding a poor sense of street address to Lots 24-31 and 86-89. 2. The planning experts agreed on the deletion of two lots and dwellings, lots 39 and 65, to provide two groups of four dwellings instead of five, to provide an area of additional landscaping and 8 visitor parking spaces near the entry to the site (exhibit V). Mr Baker is of the view that the deletion of a pair of Type E dwellings fronting the riparian corridor and opposite the entry road would be more beneficial to the proposal by providing a vista along the entry road towards the creek. As lots 84 and 85 are deleted and an open space area is to be provided in that location, it is not necessary to delete additional dwellings. In addition, lots 30 and 31 have a different orientation to the main entry road and are not on the same axis, and while the deletion of this pair may provide a vista, it would read awkwardly as the proposal is not laid out in response to a view to an open space at the termination of the entry road. 3. The planning experts agreed that B6.6 of DCP 2014 requires dwellings with two or more bedrooms to provide 2 parking spaces. The experts agreed that the garage occupies 56% of a Type E dwelling, which does not comply with D16.1 of DCP 2014. According to Mr Barwick, the presentation of these dwellings has been modulated by the use of landscaping, recessed elements and projecting frame elements and choice of colours. Mr Baker disagrees, in his view the presentation of Type E dwellings contributes to the poor streetscape quality of PD4. 4. There are 10 Type E dwellings in the proposal. Type E dwellings are semi-detached and larger dwellings, orientating towards the creek and adjacent to the riparian corridor. I am satisfied that the overall design of the Type E dwellings, on larger allotments with greater opportunities for landscaping, achieves the relevant outcomes in D16.1 of DCP 2014 despite the minor numerical non-compliance with the requirement that the parking structure be no greater in width than 50% of the lot frontage. 5. The experts agreed that the rear private open space of lots 10-22, 33-38 and 70-71 receive winter sun between 9am and 10am and their living rooms receive sunshine access between 11am and 2pm, on the winter solstice. According to Mr Baker this lack of solar access in mid-winter is unacceptable. These lots are Type A dwellings with rear yards orientated to the east and they represent just over a quarter of the total number of dwellings of the proposal. As the proposal provides adequate solar access to over 70% of dwellings and their open space and as the remainder of dwellings receive 3 hours of solar access in mid-winter to their living rooms, I am satisfied that solar access is not a determinative issue. 6. I accept Mr Barwick's evidence that any privacy impacts between dwellings occur as a result of first floor bedroom windows overlooking adjoining courtyards or dwellings opposite and that this has been dealt with, to the extent possible given the density of the proposal, by off-setting windows. I accept Mr Baker's view that further privacy measures would reduce light and air to bedrooms. 7. The overall visual character created by the proposal is consistent with the density range envisaged by LEP 2014 for this site. Staging of the proposal 1. The Council contends that the proposed dedication of the inner riparian creekline corridor land in Stage 1 of the proposal is not acceptable as this dedication is required following the necessary works being carried out by the applicant within the creekline corridor. 2. Stage 1 includes the Torrens Title Subdivision to create Lot 102 comprising the inner riparian creekline corridor land. The dedication of the creekline corridor (Lot 102) is included in Stage 3 of the conditions as the description of the proposal under Part 2 – Consent and C22(b) and these conditions are not challenged by the applicant. Conditions of consent 1. The applicant opposes a number of (without prejudice) conditions of consent (exhibit 12) which are listed in the left column and determined as follows: 1 - 8 The reference to deferred commencement conditions is to be removed and the conditions moved to Part 2, as per the applicant's version of conditions, because a suite of consistent plans and supporting information is to be provided by the applicant prior to consent being granted. 1(b) To be deleted as this issue is dealt with by condition 1(c) and the Landscape Plan, refer to paragraph 59. 1(c) The requirement for two locally native canopy trees per lot is to be retained, as per the Council's version of the condition, as the trees in the front setback are to be provided in lieu of street trees. 1(d) Council's version of this condition is to be retained. The reference to deferred condition 2 below is to be amended to the new number for condition 2. 3 Council's version is to be retained. This condition is not a duplicate of condition 20 as submitted by the applicant. 4 This condition is to be amended by the addition of 'prior to construction certificate' as proposed by the applicant. The condition's sub paragraphs are to be retained as proposed by Council, excluding (f). I accept Ms Collier's evidence that the portion assumed as storage within the rainwater tanks should be provided in alternative storage, for example by increasing the size of the proposed OSD tanks 1 and 2, as rainwater tanks cannot be used to offset the on-site detention volume. [Note (c) is incomplete]. 4(f) Refer to paragraph 72. 5. This condition is to be deleted. A1 To be amended to be consistent with revision number of the amended plans. B2 Council's version on the basis of Council's submission (par 21). B3 Council agrees to applicant's version. B12 Council's version on the basis of Council's submission (par 23). B14 Council's version on the basis of Council's submission (par 24), the share path is to be a minimum of 1.5m. B15 To be deleted, refer to paragraphs 43 and 74. B18 To be deleted, condition 1(c) deals with the Landscape Plan. B21 Applicant's version as this is dealt with by condition 1(c). B22 Council agrees to applicant's version, dealt with by condition 5. B23 Council agrees to applicant's version, refer to paragraph 50. B28 Council agrees to applicant's version. C3 To be deleted, dealt with by condition B14. C4 To be deleted, refer to paragraphs 43 and 74. C12(xi) Applicant's version, refer to paragraph 42. C12(xv) Council agrees to applicant's version. C13 Council's version on the basis of Council's submission (par 35). C20 Refer to paragraph 68. C21 Council's version on the basis of Council's submission (par 40). Further amendment is necessary for a total of 79 lots. C22 Council agrees to applicant's version. C22(b) Council's version on the basis of Council's submission (par 41). C24 To be further amended. E1 Council agrees to applicant's version. E3 Council agrees to applicant's version. E5 Council agrees to applicant's version. F4 Council agrees to applicant's version. F9 Council's version on the basis of Council's submission (par 44). F17 Council's version on the basis of Council's submission (par 45). F18 Council's version on the basis of Council's submission (par 46). Findings 1. Sub-clause 6.1(3) of LEP 2014 prohibits development not within the parameters set for the number of dwellings to be erected on each sector, for this site (Sector 302), between 66 and 84 dwellings (Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166 [54]). The proposal is for 83 residential allotments and dwellings, which is within the range envisaged by LEP 2014 for this site. 2. It is unlikely that any layout of this site could comply with the density prescribed for Sector 302 using semi-detached and attached dwellings and include two-way roads in accordance with the 'Local Street' cross-section in the Roads Masterplan with a 16m wide road reservation. Furthermore, the height of buildings development standard (cl 4.3 and sub-cl (2F) of LEP 2014) imposes a significant constraint on meeting the prescribed density by including residential flat buildings on this site; so that even if the proposal included some dwellings within residential flat buildings, it would be still difficult to achieve the prescribed density and provide 16m wide road reservations. The majority of attached dwellings proposed are tight in their dimensions and carefully planned to provide adequate family accommodation over two levels, but could not be described as generous in their proportions. Mr Galasso submits that the applicant is responding to the desired housing typology in this locality which is attached or semi-detached dwellings on individual allotments with private courtyards, and I accept his uncontested submission. For these reasons, I accept that the applicant has chosen to create the predominately one-way road system around the site as means of achieving the density on this site prescribed by the permitted range for the density of dwellings in LEP 2014. 3. I accept the agreement of the traffic experts that the internal roads within the proposal, although they do not strictly comply with the Roads Masterplan 'Local Street' cross-section, provide a rational and acceptable road hierarchy capable of servicing the proposal and meet the objectives of providing unrestricted public access to all private dwellings and open space. The internal roads meet the relevant outcome of B6.2 of DCP 2014 to provide safe and convenient access. 4. It was not helpful to compare this site with the nearby 'Shearwater Estate', visited by the Court and the parties, as it was prescribed a lesser density by LEP 2014. 5. I prefer Ms Collier's evidence in relation to the private riparian buffer and I accept her suggestion that the pair of semi-attached dwellings in the north-western corner of the site and their access roadway be deleted so that the proposal achieves a more generous private riparian buffer. This will have the added benefit of providing a pleasant open space area for a communal recreation facility overlooking the riparian corridor of Narrabeen Creek. 6. I am satisfied that there will adequate opportunities for appropriately scaled canopy trees and screen planting capable of creating an acceptable street character and softening the built form, commensurate with a medium density residential environment, because 74 of the total 79 lots meet the required 45% landscaped area and the average landscape area provision of lots is 53% and the proposal meets the required landscaped area with 54% of the site landscaped area. As the proposal meets the landscaped area requirements of DCP 2014 at C6.23, I am satisfied that the imposition of conditions of consent requiring a detailed landscape plan, as proposed by the Council, will satisfactorily address the Council's contention in relation to landscape design. 7. I accept and prefer the evidence of Ms Collier that the OSD facilities should address the 100 year ARI event plus a 30% increase in rainfall intensity for climate change and this requirement is to be retained in condition C20. 8. The overall visual character created by the proposal is consistent with the density range envisaged by LEP 2014 for this site. 9. The dedication of the creekline corridor (Lot 102) is included in Stage 3. Conclusion 1. I am satisfied that Development Application No. 177/15 for a Community Title subdivision to create 79 residential allotments, associated civil engineering works, road construction, drainage works and the construction of 20 two-storey semi-detached dwellings and 59 two-storey attached dwellings on the resultant lots at 18 Macpherson Street, Warriewood can be granted consent for the reasons set out in this judgment. Directions 1. A judgment with directions for the applicant to amend the proposal was handed down on 10 August 2016, as follows: The amended proposal is to incorporate the speed hump locations and design in Attachment 2 and the roadway adjustments at bends for 8.8m MRV in Attachment 3 of the traffic experts' joint report (exhibit 7). The visitor parking spaces are to be differentiated from the turf cells by being paved, consistent with the agreement of the traffic experts, and this is to be shown on the plans. The pair of semi-attached dwellings in the north-western corner of the site (lots 84 and 85 and their access roadway) is to be deleted so that the proposal achieves a more generous private riparian buffer and a communal recreational facility is to be provided in this location. A 1m wide footpath is to be added to the southern side of lots 24-31 and 86-89. The footpath described by condition B14, a minimum of 1.5m wide, is to be shown on the plans. A full suite of consistent plans and supporting information are to be filed and served. The respondent is to file amended consolidated conditions of consent according to the table provided at paragraph 83. The applicant is to file and serve the amended plans and the respondent is to file the amended conditions of consent according to an agreed timetable to be submitted to the Court by 17 August 2016. Liberty to restore on 2 days' notice. Orders will be made in chambers. 1. The parties provided an agreed timetable for the provision of the amended proposal and filed the amended plans (Annexure B) and conditions of consent (Annexure A) in accordance with the judgment on 15 September, 2016. ORDERS 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 177/15 for a Community Title subdivision to create 79 residential allotments, associated civil engineering works, road construction, drainage works and the construction of 20 two-storey semi-detached dwellings and 59 two-storey attached dwellings on the resultant lots, at 18 Macpherson Street, Warriewood, is approved, subject to the conditions of consent at Annexure 'A' 3. The exhibits, other than exhibits 1, A and V, are returned. _____________________ Susan O'Neill Commissioner of the Court 151183.16 O'Neill (C) (383 KB, pdf) 151183.16 O'Neill - 105 SITE PLAN- GROUND (ADAPTABLE) (2.46 MB, pdf) 151183.16 O'Neill - 106 SECTION - THROUGH TYPE D (331 KB, pdf) 151183.16 O'Neill - 120 JUNE 21ST - PLAN (4.82 MB, pdf) 151183.16 O'Neill - 121 JUNE 21ST - PLAN (3.79 MB, pdf) 151183.16 O'Neill - 122 ELEVATIONS SHEET 1 (802 KB, pdf) 151183.16 O'Neill - 123 ELEVATIONS SHEET 2 (909 KB, pdf) 151183.16 O'Neill - 124 ELEVATIONS SHEET 3 (847 KB, pdf) 151183.16 O'Neill - 200 TYPE A (508 KB, pdf) 151183.16 O'Neill - 201 TYPE A (334 KB, pdf) 151183.16 O'Neill - 202 TYPE A (334 KB, pdf) 151183.16 O'Neill - 203 TYPE B (323 KB, pdf) 151183.16 O'Neill - 204 TYPE B (227 KB, pdf) 151183.16 O'Neill - 205 TYPE B (221 KB, pdf) 151183.16 O'Neill - 206 TYPES C & E (321 KB, pdf) 151183.16 O'Neill - 207 TYPES C & E (409 KB, pdf) 151183.16 O'Neill - 208 TYPES C & E (360 KB, pdf) 151183.16 O'Neill - 209 TYPE D (452 KB, pdf) 151183.16 O'Neill - 210 TYPE D (531 KB, pdf) 151183.16 O'Neill - 211 TYPE D (400 KB, pdf) 151183.16 O'Neill - 212 TYPE A (416 KB, pdf) 151183.16 O'Neill - 213 TYPE A (333 KB, pdf) 151183.16 O'Neill - Plans - Landscape Design Report (9.50 MB, pdf) 151183.16 O'Neill - Plans - Proposed Subdivision (14.0 MB, pdf) 151183.16 O'Neill - Plans - Schedule of Amendments (72.5 KB, pdf) 151183.16 O'Neill - Plans - Subdivision Plans Rev D (1.82 MB, pdf) 151183.16 O'Neill - Site Plan (1.90 MB, pdf) 151183.16 O'Neill - Street Elevations + Sections (990 KB, pdf) 151183.16 O'Neill - Street Elevations 102 (2.32 MB, pdf) 151183.16 O'Neill - Street Elevations 103 (2.32 MB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2016