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…
SCOTLAND ISLAND RESIDENTS ASSOCIATION REPORT
AND OBJECTIONS TO THE PASADENA DEVELOPMENT
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
1. INCOMPATIBLE LAND USE / NOT IN THE PUBLIC INTEREST
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
It is this very reason that Council in its wisdom has zoned the land not suitable
for shop top housing.
2. SHOP TOP HOUSING NON COMPLIANCE
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
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.
3. SOCIAL OBJECTIVES NON COMPLIANCE
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.
4. DWELLING DENSITY NON COMPLIANCE
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.
5. DEVELOPMENTS RELIANCE ON PUBLIC LAND
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
6. LEASE OF PUBLIC LANDS EXPIRY DATE 19/11/2013 (IN 8 YEARS TIME)
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
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”.
7. LAND OWNERS CONSENT FOR SUBDIVISION OF PUBLIC LAND NOT GIVEN
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.
8. FLOOD MANAGEMENT NON COMPLIANCE
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
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.
9. CHURCH POINT MASTERPLAN NON COMPLIANCE
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.
10. CAR PARKING
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.
11. “THE EFFECT OF DEROGATING”
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
12. EXCESSIVE BULK AND SCALE / HERITAGE OBJECTIONS
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.
13. SLOPING WALLS
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.
14. ACCOUSTIC PRIVACY
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.