April 23 - 29  2023: Issue 580


DA Proposal for palm beach Fish & Chip site refused: Residents relieved but still calling for the return of Pittwater council

Palm Beach fish & Chips, 2021, just before the site was demolished. Photo supplied
The common theme throughout the submissions objecting to the DA proposal for the old fish and chip site at Palm Beach, abutting historic Barrenjoey House, is that there have been too many breaches of the LEP and DCP - height breaches, bulk and scale breaches, heritage breaches, public amenity breaches and even geotechnical breaches. 

A decision from the Northern Beaches Planning Panel on February 15 to defer consideration of  Application No. DA2022/0469 was to give the applicant the opportunity to submit to Council by 15 March 2023 amended plans that reduce the overall height, bulk and scale including removal of the mansard roof, set back the upper level and roof form to be more compatible with surrounding development particularly heritage listed Barrenjoey House, reduce the overly strong vertical influence of the balcony columns at the front and their impact on bulk and scale and redesign the mechanical plant enclosure to minimise the height of the screening and the provision of rooftop landscape screen. 

Throughout the iterations of barely modified plans the Council has expressed its support for the proposal and recommended to the NBPP that it be approved, despite the clear breaches and hundreds of written objections from right across the community pointing these out, chapter and verse.

Council documents recommending approval have erroneously parroted piecemeal the proponents declaration that;

''Of relevance to the consideration of the height and form of the development is the existing active consent for a three storey shop-top housing development on the land (N0119/14 approved by Pittwater Council). Whilst the assessment of the current development application is not reliant upon or bound by the parameters of this existing consent, the reality of the situation is that the existing consent means that a three (3) storey shop top housing development could be constructed at any time.''

However, what this statement negates to mention, as that 2014 Pittwater Council assessment points out, that height breach was not over 30% and the structures was not 44metres in length and squeezed into every centimetres of the block, and did not require 'anchoring' itself under the neighbours homes - that 'height breach' was an extra metre at the western edge of just one roof line, and that Pittwater Council assessment found that;

'Most importantly, the height of the development is not considered to overwhelm the adjoining item of heritage significance as the proposed ridge height is approximately equal to that of 'Barrenjoey House' and set back from the street in line with the ridge of the existing adjoining building. Furthermore, as the development approaches the adjoining heritage item, the development is setback further into the site where the proposal complies with the prescribed building height.'

Page 16 Report to the Development Unit Meeting, to be held on 13th November, 2014 Pittwater Council assessment of N0119/14; PON Pittwater Council records kept

2014 - N0119/14; side profile drawing submitted to Pittwater Council; - no one objected to this DA; not a single person - letters of support were lodged, from PON Pittwater Council records kept 

Further, the community subsequently became aware Council had met with the planning panel members on March 8 2023 in a closed meeting (not open to the public). The Palm Beach Whale Beach Association pointed out that in this Council 'were able to advocate reverting to the “original” plans contrary to the Panel's decision of 15th February.'

''What is genuinely disturbing is that Council’s planning staff were able to advocate, in the absence of the public, for plans against which over 150 objections had been lodged by the public - plans which furthermore show a number of serious breaches of planning controls.'' the Association stated on April 11th.

The PBWBA and people who are not members of residents associations have reiterated again and again in past years that a council which advocates for the overdevelopment of sites and approves or recommends approval of structures that ignore the Pittwater DCP and LEP must be removed and their former Pittwater Council returned. 

Coupled with the council's rezoning plans, which will impact on thousands of properties in Pittwater and just 1 in the former Warringah and 54 in the former Manly council area, the perceived targeted 'trashing of Pittwater', as Pittwater could have its own zoning, and recent 'advocacy' that ignores the DCP and LEP across the former Pittwater LGA have reignited calls for a return of Pittwater Council and that council's focus on looking after the community and the environment that community lives in.

Local Planning Panels (LPPs) were established to ensure increased probity and accountability in the planning system, safeguard against corruption and lead to better planning outcomes. The panels consist of a chair and two independent experts plus a community representative. The role of the community representative is to ensure that local insights and knowledge are considered as part of the panel’s decision-making.

The NSW Planning Department developed the referral criteria with two key objectives in mind:

  • ensuring LPPs focus on contentious and complex development applications and applications with the greatest corruption risk, while council staff continue to determine routine applications
  • building flexibility into the criteria to reflect differences in the types of development and community expectations across local government areas.

Given their purposes and framework residents are wondering why that March 8 closed meeting took place at all. 

Council's continued recommendations to the NBPP to approve the proposal would have subjected those members to having to do a deeper dive as well - and find what everyone else found, from 2014 onwards.

The NBPP members have been joined in all the extra work by those this proposal would impact on directly; Neighbours to the south and east have had to engage specialists and legal teams to investigate and report on the geotechnical aspects, at their own cost and at great expense, and to point out that documents pertaining to these supplied by the proponent's agent do not meet the Council’s policy requirements or objectives. Further, the proponent's reports for these rely on encroachments into and under neighbours land and homes, without having ever approached the same to discuss this, and with those neighbours agents having to point out these would damage those premises, and the surrounding hill. 

Since May 2021, hundreds of individual submissions alongside local bodies such as the PBWBA and Mona Vale Residents Association, the newly formed Palm Beach Protection Group and Pittwater Environmental Heritage Group, formed since the forced amalgamation to fight Council decisions that 'trash Pittwater', have been lodged with the Council regarding this DAs various slightly amended plans. Just one of these, from a developer, supported the project. 

The latest 'amended' drawings had another brand new 77 objections by the time the next meeting on this proposal was held.

Despite the opportunity to modify the design, the drawings submitted since March 8 continued to ignore those changes requested and continued to ignore the objectives and planning controls of the Pittwater LEP in the aims of Plan, its zone objectives, the height of buildings, exceptions to Development Standards and earthworks. 

The proposal remained contrary to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 as it fails to satisfy objectives and planning controls of DCP and still demonstrates poor streetscape, ignores heritage conservation, continues to have excessive wall height and number of storeys, and disregards building separation.

On April 20 2023 another public meeting by the NBPP was held at which the Northern Beaches Local Planning Panel, on behalf of Northern Beaches Council as the consent authority, refused Application No. DA2022/0469 for construction of shop top housing on land at Lot 11 DP 1207743, 1102 Barrenjoey Road, Palm Beach, for the following reasons:

1. The applicant’s written request under clause 4.6 of the Pittwater LEP 2014 seeking to justify a contravention of clause 4.3 Height of Buildings development standard has not adequately addressed and demonstrated that:

a) compliance with the standards is unreasonable or unnecessary in the circumstances of the case;

b) there are sufficient environmental planning grounds to justify the contraventions, and

c) the proposed development will be in the public interest because it is consistent with the objectives of the standards and the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development is inconsistent with the provisions of Clause 4.3 Building Height of the Pittwater Local Environmental Plan 2014 as it is not considered to be compatible with the height and scale of surrounding development and does not minimise the adverse visual impact of development on the natural environment and heritage items.

3. Pursuant to Section 4.15(1)(a)(i)of the Environmental Planning and Assessment Act 1979, the proposed development is inconsistent with the provisions of Clause 5.10 Heritage Conservation of the Pittwater Local Environmental Plan 2014.

4. Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 7.7 Geotechnical Hazards of the Pittwater Local Environmental Plan 2014.

5. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposal is inconsistent with Part D12 (Palm Beach locality) of the Pittwater 21 DCP.

6. Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposal is not considered to satisfactorily meet the relevant Design Quality Principles of SEPP 65, in particular Principle 1: Context and Neighbourhood Character and Principle 2: Built Form and Scale and Principle 9: Aesthetics

7. Pursuant to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979, the proposed development is not in the public interest.

Prof. Richard West AM, President of the Palm Beach Whale Beach Association, stated on behalf of members and the community, ''It is heartening to see that the Northern Beaches Planning Panel has comprehensively rejected this development application (DA). There were over 150 submissions from the community against this DA. 

''It is pleasing that the NBC Planning Panel, on this occasion, has listened to the community in rejecting this DA. This has not always been the case. Previously the Northern Beaches Council (NBC) Department of Planning and the NBC Planning Panel, have supported DA’s with many non-compliant issues.''

The NBC Department of Planning has on many occasions supported this DA. Why? When the DA has been so comprehensively rejected by the NBC Planning Panel.'' Mr. West said

Prof. West's statement echoes the same reaction of many people across Pittwater since Thursday April 20. The community is relieved something more fitting may now be built on the old fish and chip site. However, just as many are still calling for a return of Pitttwater Council.

Another group formed from community members after the forced re-amalgamation of Pittwater Council with Warringah, Protect Pittwater, will hold its AGM in mid May. Their aim is to help that expressed community mandate that persists realised - to see Pittwater Council reinstalled.

Members are currently collecting signatures on a petition to present to the newly elected Labor government.