Planned Pasadena Development shows
                   incompatibity of use
The previous Pasadena development application was refused in the New
South Wales Land and Environment court 27October 2003 on a number of
grounds, including incompatibility of usage. Private residential development
was considered to be incompatible with the public uses of the Thomas
Stevens reserve. The current DA has not addressed this issue as indicated
SIRA’s response and most of the other letters of objection placed on the
Council’s website. No-one wants to see any intensive residential
development along the shore shores of Pittwater. But that’s not all.

For the full catastrophe read on…

               APPLICATION N0051/05, APRIL 2005


Church Point has always been a natural landing place. It faces north, taking the sun,
has deep water close to its western shore, and is protected from the north-easters by
Scotland Island. The Point itself is the termination of a steep spur that linked through
to Lane Cove and Hunters Hill. This was the first early land connection to the Sydney
Cove settlement. They used to run the contraband rum to Sydney via Church Point.
(Alcohol already playing a part in our history!) Boats were the early form of transport.
Later, when Manly became connected to Pittwater, Church Point was the destination.
Pittwater Road terminates at Church Point.

In 1872, William Oliver, one of the pioneers of Pittwater, joined with other locals to
dedicate an acre of public land, in perpetuity, to the community for a school, church
and cemetery. As a result of this, Church Point became the focus for indoor and
outdoor ceremonies and for community gatherings.

Historically the site has been used to serve community interests in return for
commercial gain with tearooms and offshore residents boat storage and repairs. The
nature of this kind of use should be encouraged to continue.

The community still gathers in the Thomas Stephens Reserve, where friends meet
over a beer, matters are settled, kids mix freely and safely and celebrations and events
are held. It is serviced as a small neighbourhood. The reserve is self-regulated. Locals
planted the trees, locals clean it, and a comprehensive recycling system was set up.
Church Point is the core of a vital, self-helping and environmentally conscious

Early farms became residential communities feeding through Church Point and they
still do. Between the wars, the Pasadena was built on reclaimed land and has grown to
its present form.

There have been several failed development applications and the present owners are
fully aware of the history of the various attempts to enlarge the development. The
present application once again runs against the same fundamental issue – that of
inappropriate development, environmentally and socially.

Church Point is the transition zone for the change in transportation mode for
the public ferries, busses, motor vehicles and individual tinnies for the
offshore communities living on Scotland Island, McCarrs Creek, Elvina Bay,
Lovett Bay and Towlers Bay. As such it is a focal point for the local
communities with a resident population of over 1,500. It also is a major point
of supply for the local sailing community.

These issues have already been dealt with twice in the Land & Environment
Court and so need to be revisited again in our objections to this latest


       Residential Units on this site are incompatible with the surrounding land uses
       and the restaurant within the building.

       Thomas Stephens Reserve and Church Point Reserve surround the proposal
       and are the hub of community activity for the 1500 offshore residents and
       other visitors. Thomas Stephens Reserve was gazetted for Public Recreation
       and Access on 28/07/1995.

       Six residential flats on top of a restaurant / function centre that are surrounded
       by Public Recreation Reserves where noise emanates from water taxis, buses,
       cars, social gatherings, public activities, Christmas Carols, Anzac Day
       ceremonies, locals having a daily drink and a chat, the dog race etc, would
       lead to many complaints from the owner occupants in the building.

       The social impact of this proposal for 6 residential units is no different to the
       social impact of the 12 units previously refused by the Land & Environment
       Court in 2003 (Moore Development Group vs. Pittwater Council). In this case
       it was found …… “The Council’s experts and the local residents, in
       particular, pointed to the fact that the proposal would be surrounded by public
       land and if the future occupants of the proposal were unsuccessful in annexing
       the leasehold land to the north and east the public and private uses would be
       cheek-by-jowl. Based on this evidence, I am satisfied that there would be
       likelihood of conflict between the aspirations for quietude of those occupying
       this prime waterfront land and locals, that could not be resolved by
       reasonable conditions. Although the design does have the potential to
       ameliorate some of the use conflicts because of its orientation and design, the
       land is surrounded by public uses in close proximity and would not be suitable
       for private use as proposed. As I am satisfied that the land would not be
       suitable for the proposed development and not in the public interest, I would
       refuse the application under s 79C(1) (c) and (e) of the Environmental

     Planning and Assessment Act 1979.”
     “I have concluded that the application should be refused as it would be of
     inappropriate height, bulk and imposing and the extent of the proposed private
     residential use would be incompatible with the public uses that surround the
     freehold land.”

     It is this very reason that Council in its wisdom has zoned the land not suitable
     for shop top housing.


     Shop top housing is prohibited on this site. Besides being incompatible with
     its immediate environs, these developments throughout Sydney are proving
     very hard to manage. As they are generally Strata Title, the Owners
     Corporation of the Strata Scheme need to agree to the lodgement of a DA for
     each use of a commercial premise / shop below. Quite often the owners do not
     agree on the use of the proposed shop. You then often find that applications
     for commercial uses which would be of benefit to the local community never
     get to the counter at the local Council. Such would be the case here. The
     applicant gives no indication of the use of the two shops and so Council
     cannot condition the uses so desperately needed in this Neighbourhood
     Business Zone.

     The Applicant argues that the second and third storey residential units may be
     permitted with development consent by virtue of “a change of existing use”.

     SIRA argues that it also may not be permitted through a Development refusal.

     SIRA, in a nutshell, supports the previous Land and Environment Court ruling
     that found residential usage incompatible. Also, Council has not designated
     the land for shop top housing. It is therefore concluded that it is not in the
     public interest to approve a residential component in this building.

     SIRA strongly supports Business-Zoning uses only, not uses that may or may
     not be granted development consent through planning loopholes.

     From the above objection it is easily demonstrated that the combination of
     commercial and residential usage does not comply with the Social Objectives
     noted in Pittwater 21, in particular clause (b) “the social objectives of
     Pittwater 21 are to plan, design and site development to minimise conflict
     between land uses and ensure safety and security of people and
     property,”……….... and ……..….clause (c) “to promote the provision of
     accessible, diverse and affordable housing options to cater for of the changing
     housing needs of the community.”

     It is these 6 units that, because of their waterfrontage and pristine views of
     Pittwater, will bring top dollar to the developer and not affordable housing
     options to the local community.

     Even though Shop Top housing is prohibited, dwelling density for shop top
     housing would otherwise be limited to 3 units. Six dwellings on top of a level
     of shops on 634 square metres of land represents a massive overdevelopment
     of the site in a residential precinct where the average “single house” lot size is
     around 700 square metres. The proposal may be said to represent the most
     intense development per square metre in Pittwater.


     The proposal is not dissimilar to the previous two applications that have been
     refused in the Land and Environment Court. The building again relies on
     surrounding public land to function. Church Point does not have enough flat
     public land. A podium in Thomas Steven Reserve as a “step up” to the
     building, a large awning, parking for 7 cars, a loading bay, residential and
     commercial garbage storage areas, an access ramp and pedestrian ramps, are
     all on public land and are necessary to service the development. The podium
     on the Thomas Stephens Reserve disjoints the surface of the Reserve even
     more than it is now. This podium has the potential to demarcate different
     usages and will be more of a nuisance to the community than an asset to the

     SIRA objects to this use of public land and maintains that all works required to
     allow a building to operate should be contained within the buildings own
     freehold land.

     The proposal relies on the ongoing permanency of the lease of Lot 320 (the
     land to the north of the Pasadena), which has a limited duration to the year
     2013. Can Council be confident that the building can operate should the lease
     be terminated and reverted back to public use, as indicated in the draft Church
     Point Masterplan?

     The Department of Lands have not consented to the use of the land for the life
     of the development, that is, beyond 19th November 2013.

     In fact, on Oct 4th, 1995 both SIRA and WPCA wrote to the then Minister Kim
     Yeadon arguing that the community needed this prime area for public
     recreation and access purposes. The skinny walkway from the car park to the
     ferry wharf needed to be much larger, as now shown on the Church Point draft
     Masterplan. SIRA continues to support this lot being open again for public
     access and recreation usage either on or before 19 November 2013.

     Lot 320 should be given back to Council and any commercial enterprise on the
     Pasadena land could then apply to Council to rent the public space, the same
     as shops rent outside eating areas on our public streets.

     Under the current lease, “LE 311606” clause 90 ….“Entry by the Public”, …
     stipulates ….. “the public shall have the right of access over that part of the
     lease area shown by cross hatching (the lawn area in front of the restaurant’s

     outside seating) provided there is no undue obstruction of the lessee’s

     As the owners have continually restricted public access across the lawn (the
     hatched area on the plan), the land should revert to the control of the Council,
     not the Department of Lands.

     On the 19th November 2013, Condition 84 of the lease comes into effect
     …“The Holder will forthwith upon the determination of this Lease peaceably
     surrender and yield up to the Lessor the Premises in good condition
     reasonable wear and tear excepted together with all conveniences amenities

     and appurtenances relating thereto clear and free from rubbish and in good
     and substantial repair order and condition in every case having regard to the
     age of what is being surrendered or yielded up”.

     No details or draft strata subdivision plan has been included in the application.
     Owners Consent from the Department of Lands to subdivide public land has
     not been given. Seven car spaces, garbage areas, outside seating, podiums,
     awnings, access ways etc. external to the freehold lot will be required to
     service the development and will need to be part of the common property in a
     Strata Scheme. This Scheme can only include Strata Title leased areas up
     until expiration of the Head Lease on 19th November 2013.

     SIRA strongly objects to a Strata Title leasehold scheme that includes a
     subdivision of public land, for private commercial gain, especially as the
     offshore residents have been told to vacate their only legally gazetted parking
     space by 30th June 2007.

     The Applicant’s engineers report discloses that Council has set the minimum
     flood planning level at 2.5 metres AHD. However, as the entrance driveway is
     further away from the sea wall they argue that it may be reduced to 2 metres
     AHD. However, Council advises that this is the case only where there is a
     vertical sea wall. In this instance, adjacent to the Pasadena’s vertical sea wall
     is an old concrete launching ramp leading onto the beach. The ramp is sloping
     and the sea wall to the east of this ramp is much lower. This appears not to
     have been taken into account in the Engineer’s calculations. If so, the ground
     entry crest level to the basement car park would be above their calculated
     RL2.0 AHD.

     This presents another problem from a flood risk point of view. The report
     notes that …“due to access route difficulties and maximum driveway entry
     grades it is not possible to construct the basement entry crest level as low as
     RL2.0m AHD”…………….“ A level of RL1.85m AHD is the most suitable.”

     The report then goes on and proposes that the owners of the units … “store
     sandbags on the property for use in this extreme event”.

     It is obvious that even if the applicants lower flood level was used, Council’s
     driveway transition and gradient requirements could not be met, unless the
     building was raised. The applicant’s levels are already 0.5 metres lower than
     the Council’s. On Council’s advice to the applicant it is stated …. “minimum
     floor level for development and minimum levels for underground car park
     entry is the Estuarine Planning Level”……..This is 2.5 metres AHD.

     In any event, it is completely inappropriate for the unit owners to supply and
     maintain sandbags in the basement of the building. Equally inappropriate is
     the expectation that the owners will rush downstairs (if at home) and place
     sandbags across the driveway in times of major storms, tidal or local flooding.

     Local flooding outside the Pasadena in years past has been observed to be
     above RL2.0 AHD. Again, this is another inept and unsafe expectation that
     Council cannot prevent by conditions in a Development Approval.


     A formal response from SIRA to the draft Church Point Masterplan and Plan
     of Management is still to be subject to community consultation. However, it
     is noted that vehicular entry to the Pasadena is currently prohibited through the
     Reserve. In reality, the Pasadena’s leased area frontage to Pittwater Road has
     been blocked off and the Reserve has been used for access to the leased area.

     The proposed entry to the basement car park at the eastern end of the building
     has been discussed in meetings with the Church Point Masterplan Design
     Group. Representatives on this group came from the local onshore and
     offshore resident associations, Lands and Council. It was generally agreed
     that the entrance ramp as shown on the Masterplan would be the safest and in
     the developers interest. It was also agreed that in doing so there should be a
     return of some, or all, of the leased lawn area back to the public domain. That
     is why the lawn area on the Masterplan is coloured green with no car spaces

     The result would be free and easy public access around the point with
     adequate space for the traditional ceremonial activities to be reactivated.

     Opening up of public thoroughfare access from Bennetts Beach to Cargo
     Wharf is mandatory and a prominent feature in the current and all previous
     plans of management for the area.

     The application at hand seeks to restrict public access and use of the Point by
     introducing restrictive landscaping and car parking spaces. The Masterplan
     notes … “Any future development of the Pasadena is to recognise the
     commercial nature of the area” …. “and to provide onsite parking” ……
     “Existing car parking (in Pittwater road outside the building) to be

   Clearly the Applicant wants to redevelop the site with no concessions to the
   community or its visitors that would create a much needed quiet and peaceful
   useable area by the water to relax or picnic.

   SIRA will continue to lobby for the return of all the leased areas to the public.
   The application at hand should be promoting more of a public presence on the
   land outside the commercial component of the building. This then would
   conform to the intentions of the Masterplan and make the commercial area
   more viable. It is rather strange that on one hand the Department of Lands
   wants all our cars off the Reserve by 30 June 2007 (even though we have the
   right to park as notified in the Government Gazette) to make way for more
   green space, and on the other are prepared to consider further private and
   commercial expansion within the same Reserve.


   As has been well documented over the years, the offshore residents and
   residents of Church Point have difficulty parking their cars through lack of
   available spaces. The general feeling among the offshore residents is not to
   reduce the amount of existing surface parking. SIRA maintains that the
   normal car space requirements for the restaurant should be contained within its
   own freehold land site.

   Any function in the Pasadena at present fills one end of the car park. These
   functions severely restrict local residents wanting to access the mini market /
   post office and offshore residents to a space to leave their car overnight. With
   the restaurant licensed for 164 persons around 55 car spaces would be the
   requirement for a new development approval. The traffic report makes no
   mention of the restaurant’s required number of parking spaces, only to say
   that……. “In respect to the Restaurant there will be no significant change to
   the traffic generating characteristics as it will continue to operate under its
   existing licence with the same number of seats” …………. and that ……….
   “There will not be any adverse traffic, parking or traffic related
   environmental implications resulting from the development”.

   SIRA maintains that the current parking situation is chaotic and vastly
   inadequate, and any new development should contain its parking requirements
   within its own land. Even if the proposed Church Point Plan of Management
   eventually allowed only 70 free surface car spots, after 30th June 2007 this
   development would have the use of 55 spaces while our 1500 residents would
   be looking for a parking space in the street. Parking on the Reserve needs
   complete finalisation prior to any development consent for the Pasadena.


   All through the Statement of Environmental Effects the Applicant argues that
   all of Pittwater Council’s planning rules that would derogate or have the effect
   of derogating a change of use has no affect when considering this application.
   It is stated …. “such provisions of the LEP and DCP’s have no force or effect
   in relation to assessment and determination of the subject application”

   It is this planning loophole that the Applicant uses to justify non compliances
   with the following planning provisions; Dwelling Density, Height of Building,
   Car Parking, Front Building Line, Side and Rear Setbacks, Foreshore Building
   Line, Building Envelope, and Site Coverage. How many “derogations” are
   possible in one application? Previous applications have completed SEPP 1
   objections in this regard.

   The cumulative effect of these non compliances, together with the negative
   social impact of the proposal leads SIRA to support Council in closing this
   planning loophole by refusing the change of use of part of the building to


   The building itself virtually occupies the whole 634 square metres of site area.
   The proposed ridge level of the building appears 1.9 metres higher than the
   existing building and resembles, in plan and elevation envelope, a similar size
   building to the 1992 Motel expansion application and the 2003 Residential
   Unit expansion application. The Assessor in the 1992 appeal finds …… “At
   the outset I think it’s appropriate to say that my observations of the building
   and particularly as seen from the water suggest to me that it is indeed as it
   stands a very visible and very visually dominant building and given that it
   exhibits a style of architecture which one might characterise as “austere post-
   war functional”, it is not what I would characterise as a desirable adjunct to
   the foreshore …………………. Regrettably I do not believe the architectural
   solution that has been proposed in the Pasadena achieves an acceptable
   solution ……….On the one hand one could nearly have attempted to pick up
   the design features of the existing post office and mini-market and in some
   fashion soften the apparent outlines of the existing Pasadena building ……..
   the nett result I fear is both excessive in terms of the surroundings and
   certainly does not seem to harmonise with anything that I was able to observe

   The Assessor in the 2003 appeal finds ……… “I am satisfied that the
   application should fail for reason of its inappropriate height and bulk in this
   prominent location at Church Point. I am satisfied also that the proposal
   would not be in the public interest for reason of the likely adverse impacts of
   that development, including environmental impacts on both the natural and
   built environments, and social and economic impacts in the locality”…………
   and the Assessor accepted the evidence that ………… “The development will
   have a dominant and overbearing effect on both the reserve and the heritage

   We are again faced with a proposal very similar with excessive height, bulk,
   and scale and in conflict with the heritage value of Church Point. Briefly, the
   ridge height of the existing laundry roof is RL11.85. The ridge height of the

   building in the 1992 application was RL13.55. The ridge height of the
   building in the 2003 application was RL14.2 metres.

   The ridge height in the current application is RL13.785 metres (only about 400
   millimetres lower than in 2003). The current application also increases the
   living space on the top floor to 185 square metres larger than the area currently
   occupied by the laundry on the top floor of the existing building. With this
   large increase in area at the top of the building, this proposal will be more
   imposing than the previous two.

   Council needs to check the “comparative height table” on page 23 of the SEE
   as there are inconsistencies with the roof heights shown on the drawings and
   in previous refusals. There also seems to be an error on the Architects plan

   which shows that the existing building is actually higher than what it is,
   therefore reducing the impact of the proposal’s additional height.


   The sloping walls of the building allow a wider footpath around the base of the
   building. However all of this path is not usable. There is likely to be a need
   for a barrier half way across the pathway to stop people hitting their heads.
   The application boasts it incorporates 1.8 metre wide setbacks at ground level,
   however only a metre is likely to be safe to use.


   The Applicant argues that …..“the noise emission from all sources to the
   apartments above will be within the acceptable criteria”
   It is also argued that the existing operation complies with acoustic
   requirements and that Scotland Island Residents will not be affected. SIRA
   completely refutes the acoustic report. Many, many complaints by Island
   Residents have been made in the past to the Pasadena when a function is in
   full swing. As these activities are to continue, the upstairs residents will
   obviously become opposed to the restaurants activities.


   SIRA remains firm on this and previous objections to the overdevelopment of
   the Pasadena site. After all, with a site of only 634 square metres on
   reclaimed land below the old waterfront alignment, there is only so much one
   can expect to do. Business uses of benefit to the local community and its
   visitors is all that should ever be proposed on this site. Planning loopholes
   that may allow inappropriate uses and bigger buildings need to be curtailed up
   front in any assessment process.


To top