Brand v Ballina Shire Council

[2024] NSWLEC 1798

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brand v Ballina Shire Council [2024] NSWLEC 1798

Hearing dates:

29-30 July 2024 and 3 December 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application number 2022/333, as amended, for the staged development comprising stage 1 for strata subdivision into two lots and erection of a carport; and stage two for construction of a two storey dwelling house at 43 Ballina Street Lennox Head, is refused.

(3) The exhibits are returned, except for exhibits 1, A, B, and C

Catchwords:

DEVELOPMENT APPEAL – strata subdivision – dwelling houses – staged development - characterisation - zone objectives – local centre – activation – draft LEP – planning proposal

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.22

Strata Schemes Development Act 2015

Ballina Local Environment Plan, cll 2.3, 2.6, 4.1, 4.1A, 4.1B, 4.2, 4.2A, 4.2B, 4.2C, 6.1, 7.9, 7.17, Pts 4, 6, 7, Sch 1

Draft Planning Proposal – 24/002 General Amendment 2024

Environmental Planning and Assessment Regulation 2021

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021

Cases Cited:

Abret Pty Ltd v Wingecarribee Shire Council (2011)180 LGERA 343; [2011] NSWCA 107; (2011) 180 LGERA 343

Aldi Foods Pty Ltd v Holroyd City Council (2004) 139 LGERA 259, [2004] NSWLEC 253

Ali v Liverpool City Council [2009] NSWLEC 1327

Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138

Australian Alliance Assurance Co Ltd v Attorney General (QLD) [1916] ST R Qd 135 Australian Alliance Assurance Co Ltd v Attorney General (QLD) [1916] ST Qd 135

BGP Properties Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) (2011) 210 LGERA 247; [2011] NSWLEC 83

Cody v JH Nelson Pty Ltd (1947) 74 CLR 629

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 149 CLR 2974; (1981) 35 ALR 151

Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780

Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672

Mathers v North Sydney Council [2000] NSWLEC 84

Mills v Meeking (1990) 91 ALR 16[1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16

Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565

Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Texts Cited:

Ballina Development Control Plan 2012

Ballina Shire Local Strategic Planning Statement 2020-2040

Lennox Head Community Aspirations Strategic Plan 2002

Lennox Head Strategic Plan 2023-2043

Macquarie Dictionary

Category:

Principal judgment

Parties:

Trevor Brand (Applicant)
Ballina Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
J Reid (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/453093

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal is about two dwelling houses in the main street of Lennox Head. The Applicant, Trevor Brand (Brand) appeals the actual refusal of DA 2022/333 at 43 Ballina Street, Lennox Head (site) for a two stage development (DA) comprising:

1. Stage 1: Alterations and additions to the existing single storey dwelling comprising a carport, tree removal and driveway works. Stage 1 includes the strata title subdivision of an existing Torrens title lot to create two strata lots. One lot fronting Rayner Lane is proposed at 631.23m² and the other lot facing Ballina Street is proposed at 539.77m².

2. Stage 2: Following completion of the strata subdivision, construction of a new dwelling including swimming pool, landscaping, vehicular access, and associated works on the lot facing Ballina Street.

2. On 14 November 2024, Council filed a Notice of Motion to reopen the hearing to adduce evidence on the draft planning proposal. The motion was unopposed, and the Court granted leave on 3 December 2024 and received evidence and submissions that same day.

3. With consideration of the evidence and the site viewing, I find that that the proposed development is contrary to the objectives and controls to provide an active development and frontage to the Lennox Head Centre sought by the planning controls and that the likely impacts of the development on the Lennox Head Village Centre warrant that the appeal should be refused.

Site description and locality

4. The subject site is known as 43 Ballina Street, Lennox Head and legally described as Lot 28 Sec 1 DP 11687. The site has a frontage to both Ballina Street (15.2m) and Rayner Lane (16.3m) with side boundaries of 75.9m (north) and 78.6 (south) as set out in the Statement of Facts and Contentions (Ex 1) (SOFAC). The site is currently improved with a dwelling and ancillary structures that are located towards Rayner Lane.

5. The site is located towards the end of the main street local centre which is zoned E1 Local Centre under the Ballina Local Environmental Plan 2012 (BLEP). To the south after Rutherford Street, the zone changes to R3 Medium Density Residential. To the east, the site is located a block back from the beach. Under the Ballina Development Control Plan 2012 (BDCP), the site is located within the Lennox Head Village Centre.

6. As observed at the site viewing and from exhibits 5 and 6, existing or approved development along and behind the local centre is primarily a mix of commercial uses, tourist and visitor accommodation and dwelling houses. Ex 5, prepared by the planning experts, locates dwellings in the local area and describes the dwellings as being constructed between the 1940s-1980s.

Background

7. Following lodgement of the DA on 14 July 2022, Council notified the DA from 12 October 2022 to 27 October 2022. No submissions were received. The DA was refused on 6 October 2023.

8. During the hearing, leave was granted by the Court, unopposed, to amend the DA to move the location of the pool equipment area near Ballina Street, increase the setback of one of the carports to Rayner Lane and amend the proposed strata plans of the two lots.

Issues

9. The following issues are raised by Council in its SOFAC to warrant refusal of the application:

1. Intensification of land use,

2. Local centre amenity,

3. Road widening to Rayner Lane,

4. Car parking and access,

5. Setbacks, and

6. Insufficient information in relation to solar access, roof pitch, landscaping, and noise.

10. At the case management conference, the Court directed the parties to consider if the proposed development could be characterised as a dual occupancy, a prohibited use in the zone.

11. Following joint expert reporting and amendments to the DA, some of the contested issues remained in dispute. These are distilled as:

1. Characterisation of the development (raised by the Court),

2. Use and activation facing Ballina Street, and

3. Draft LEP (as of 3 December 2024).

Expert Evidence

12. In accordance with its usual practice, the Court directed experts in planning and traffic to confer in relation to nominated contentions prior to the commencement of the proceedings.

13. Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex 2) by Mr Roberts for Brand and Ms McCabe for Council.

14. Expert evidence for the traffic issues was submitted in a joint expert report (Traffic JER) (Ex 3) by Mr Cromack for Brand and Mr Wilson for Council.

The Planning Framework

15. In accordance with the Council’s SOFAC, the following planning legislation, environmental planning instruments and development control plans apply or are contented to be considered for the proposed development:

• Environmental Planning and Assessment Act 1979 (EPA Act)

• Environmental Planning and Assessment Regulation 2021 (EPA Reg)

• State Environmental Planning Policy (Biodiversity and Conservation) 2021

• State Environmental Planning Policy (Resilience and Hazards) 2021

• State Environmental Planning Policy (Transport and Infrastructure) 2021

• BLEP

• Planning Proposal – 24/002 General Amendment 2024 (draft PP)

• BDCP

• Various Ballina Shire Contributions Plans

Issue – Characterisation of the development

16. The Court raised with the parties the issue of characterisation at the case management conference and directed that parties address if the proposed development could be characterised as a dual occupancy development, which is prohibited in the zone.

17. The parties greatly assisted the Court with detailed written and oral submissions and were in agreement that the proposed development is a permissible use, correctly characterised as dwelling houses. In agreed submissions, Ms Reid submitted that the following common law principles are relevant in the interpretation of an LEP:

• A purposive and practical approach is to be given to the whole instrument: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16 at 19.

• All words in an LEP have meaning and effect: Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679.

• General words are given their plain and ordinary meaning unless the contrary is shown: Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 647.

• All words must be given meaning and effect and construed to provide the greatest harmony and least inconsistency: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71] and Australian Alliance Assurance Co Ltd v Attorney General (QLD) [1916] ST R Qd 135 at 161.

• Where two provisions in one piece of legislation appear to be in conflict (as the framers of legislation would unlikely insert provisions where one would have little effect), is there any other meaning that would produce a more reasonable result: Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574.

• Interpretation is to give effect to the evidence purpose or object of the instrument: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 149 CLR 294; (1981) 35 ALR 151.

18. In agreed submissions, Ms Reid submits that as there is no definition of ‘lot’ in the BLEP and the general principles of statutory construction apply. The term must be construed in the context of the whole of the instrument and its plain and ordinary meaning.

19. The Macquarie Dictionary defines a lot as ‘a distinct portion or piece of land; plot: a parking lot’.

20. Dr Smith submits that the proposed subdivision in accordance with the Strata Schemes Development Act 2015 (SSDA Act) are lots with separate rights and obligations. The use of ‘lot’ and ‘lot of land’ are not different in the BLEP. Part 4 of the BLEP uses ‘lot’ to control subdivision and the development of subdivided lots. The subdivided lot is a separate parcel for the purposes of the BLEP.

Consideration

21. The application is described as a two stage development. Stage 1 is for alterations and additions to the existing dwelling with strata subdivision into two lots. Lot 1 comprises an area including the existing dwelling and garage/shed. Lot 2 is shown as a vacant open space lot with a frontage to Ballina Street. The subdivision can be described as a horizontal subdivision across the site. Stage 2 is for construction of a new dwelling on the completed subdivision of lot 2.

22. The DA is a staged development, though the DA is not a concept DA pursuant to s 4.22 of the EPA Act.

23. Dealing firstly with the stage 1 alterations and additions, the works proposed as detailed on the architectural plans and Statement of Environmental Effects prepared by Ardill Payne & Partners dated June 2022 (SEE) are for a proposed new carport, tree removal, demolition, new gate, and ‘making good’ the existing fence. There are no works to the dwelling. I firstly find that the works are therefore not characterised as alterations and additions to a dwelling. An application’s description does not necessarily define the proposed development and the consent authority is to consider its characterisation (Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [15]-[19]). The stage 1 works are for a carport with associated works and strata subdivision into two lots. Notwithstanding the characterisation of the stage 1 works, nothing turns on this.

24. I accept that the staged approach in the context of a Torrens Title subdivision would result in two dwellings on two separate lots of land, as each dwelling would be on their own lot of land and therefore would not fall with the definition of a dual occupancy development comprising two dwellings on one lot of land.

25. The proposed subdivision is strata subdivision. Referred to in submissions, on my read, the SSDA Act does not refer or describe a ‘lot’ as being a ‘lot of land’ and defines a lot as:

1. “lot, in relation to a strata scheme, means one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot.”

26. The question here is if ‘lot of land’ and ‘lot’ are interchangeable and carry the same meaning in the BLEP. If a ‘lot’ and ‘lot of land’ are the same in the context of the BLEP, then the proposed development is characterised as a staged development for the purpose of dwelling houses, and is not a dual occupancy development.

Meaning of ‘lot’ and ‘lot of land’

27. I firstly adopt the approach to the interpretation of the BLEP submitted by Ms Reid and agreed by the parties [17].

28. The meaning of ‘lot’ or ‘lot of land’ are not defined in the BLEP or the EPA Act. Lot is separately defined in the SSDA Act, however I will firstly give primacy to the EPA Act and BLEP.

29. ‘Lot of land’ appears once in the clauses of the BLEP, under cl 2.6 Subdivision. The clause makes several references to a principal dwelling and secondary dwelling not being on ‘separate lots’ unless they meet the minimum lot size map. The clause then includes a note that refers to the LEP Dictionary which requires the dwelling to be on the ‘same lot of land’ as the principal dwelling.

30. The phrase ‘lot of land’ primarily arises from the LEP Dictionary definitions and clause 2.6. This occurs in the following land use definitions:

• Attached dwelling which refers to a building containing three or more dwellings. The definition requires each dwelling to be on ‘its own lot of land’ and not located above any part of another dwelling.

• Dual occupancy (attached) and (detached) which both refer to two dwellings on ‘one lot of land’.

• Multi dwelling housing which means three or more dwellings ‘on one lot of land’ that each have ground floor access but are not a residential flat building.

• Secondary dwelling is a self contained dwelling that is established with another principal dwelling, is on the ‘same lot of land’ as the principal dwelling and is located attached or separate from the principal dwelling.

• Semi-detached dwelling means a dwelling that is on its ‘own lot of land’ and is attached to only one other dwelling.

31. The term ‘lot’ is primarily used in the development standards found in Pts 4, 6 and 7 of the BLEP in relation to subdivision and minimum lot size. There are also references in Sch 1, additional permitted uses of BLEP.

32. Clause 2.6 subdivision, utilises both ‘lot’ and ‘lot of land’ in reference to the different types of subdivision (strata, community title, Torrens) and appears to be utilised interchangeably.

33. Clause 4.1 deals with minimum subdivision lot sizes. I accept the submissions that the clause is inclusive of all subdivision types and only excludes the types of strata subdivision and community subdivision expressly referred to at cl 4.1(4). The proposed strata subdivision is expressly excluded from the minimum subdivision lot size. As the proposal relies on the excluded strata subdivision, I’m of the view that this clause should not primarily be used to construe the meaning of ‘lot’ and ‘lot of land’ as it does not apply to this type of subdivision.

34. Clause 4.1A deals with exceptions to minimum lot sizes for certain residential development. Whilst the clause does not apply here, in understanding if ‘lot’ and ‘lot of land’ are different, the clause deals with both subdivision and minimum lot sizes for different types of residential development. Here, the clauses make no distinction between ‘lot’ or ‘lot of land’ for dwelling houses, attached dwellings and semi-detached dwellings. All minimum lot sizes are simply referred to as ‘lots’.

35. Clause 4.1B refers to minimum lot sizes for strata plan schemes in certain zones. Whilst it does not apply here, the clause only uses the term ‘lot’.

36. Clause 4.1C in relation to construction of a rural worker’s dwelling requires a dwelling to be ‘on the same lot’ and restricts development to not more than one dwelling ‘on the lot’. There is no reference to ‘lot of land’ and appears to mean both ‘lot’ and ‘lot of land’.

37. Clause 4.2 relates to rural subdivision and includes some restrictions on subdivision resulting in a lot containing an existing dwelling or restricting a new dwelling on a lot subdivided under cl 4.2. The clause only refers to ‘lot’.

38. Clause 4.2A constrains the development of dwelling houses and dual occupancies in certain zones (but does not apply to this DA). Only the term ‘lot’ is used.

39. Clauses 4.2B, 4.2C and 6.1 relate to requirements and exceptions to the minimum lot size areas and only refer to the term ‘lot’.

40. Clause 7.9 requires that consent must not be granted to tourist and visitor accommodation in certain zones and identified areas unless it is situated on a ‘lot’ with a dwelling (or where a dwelling is permissible).

41. Clause 7.17(2) requires a minimum ‘lot’ size for attached dual occupancies in identified areas.

42. Schedule 1, Additional permitted uses 5 and 8 refer only to ‘lots’ in relation to new subdivisions and minimum lot sizes.

43. Considering how the BLEP has utilised the terms, the types of controls referring to lots generally fall within two categories, controlling new subdivision of land into lots and minimum development requirements on existing lots. It is apparent from the BLEP that the term ‘lot’ is used to encompass all types of new subdivision and development requirements on existing lots. I accept that the consistent approach in the BLEP is that a lot is also a reference to a lot of land, and the converse.

44. Whilst I have a lingering question about the purpose of the different language used in the characterisation of development in the LEP dictionary in relation to ‘lot of land’ as opposed to clauses that control development, as set out above and in the absence of submissions or evidence to support a contrary position, I accept the parties’ detailed submissions that a ‘lot’ also refers to a ‘lot of land’.

45. I therefore ultimately accept that the proposed development is not defined as a dual occupancy development for the reasons set out above, and the proposed development is for the purpose of dwelling houses.

Issue – Use and activation to Ballina Street

46. Council presses the contentions that the DA is inconsistent with the objectives of the E1 Local Centre zone and chapter 6C for Lennox Head and Precinct D of the BDCP, as the proposed development proposes an inactive use and inactive frontage to Ballina Street and the local centre.

47. Chapter 6C of the BDCP contains the following relevant controls:

• Purpose: To identify Council's requirements relating to commercial development in Lennox Head.

• Application: This Chapter applies to:

• Location/s: All E1 zoned land in Lennox Head

• Development Type/s: All development

• Part 1.1 Introduction states that where there is an inconsistency with chapter 4 (amongst others), Council will determine which provision(s) will apply based on consideration of the strategic planning framework for the land the subject of the application, statutory considerations, relevant planning objectives, and the nature of the proposed development.

• The provisions of this Chapter prevail over the general provisions in chapter 6 in the event of any inconsistency.

48. Part 2 Chapter Planning Objectives state:

“a. Provide a high quality built environment which is complementary to the location and seaside village atmosphere of the Lennox Head Village Centre;

b. Encourage the consolidation and development of an intermediate range of retail, commercial, community and residential activities of a district scale;

c. Improve pedestrian linkages both within the village centre and to adjacent residential and open space areas;

d. Minimise the impact of buildings on the streetscape and promote an active street experience for pedestrians;

e. Provide opportunities for alfresco dining on private land within the village centre;

f. Provide adequate, integrated, safe and accessible car parking within the Lennox Head village centre to accommodate existing and proposed development;

g. Improve the amenity of the Lennox Head Village Centre through preserving and retaining existing mature native vegetation and Norfolk Island Pines wherever possible;

h. Support landscape design that incorporates the planting of landscape species indigenous to the Lennox Head area;

i. Provide for the staged implementation of a Landscape Masterplan for public land within the village centre;

j. Encourage development that is consistent with the preferred land uses identified in each village centre precinct; and

k. To provide opportunity for usable paved and landscaped pedestrian and dining environments on private land within the Village Centre.”

49. Part 3 Desired Future Character Statement:

“…

- Low scale buildings;

- The environmental heritage and qualities of the area;

- Small, independently operated shops;

- Pedestrian friendly scale;

- Proximity and access to the beach;

- The sense of community;

- Connectivity between open spaces and the commercial area; and

- People living with and in close proximity to the Village Centre.”

50. Part 4 Development Controls – All Precincts

“4.1 Element – Building Design

Objective

a. Provide a high quality built environment which is complementary to the location and seaside village atmosphere of the Village Centre;

b. Provide for low scale development compatible with the existing built form; and

c. Ensure that the Lennox Head Village Centre is accessible to all persons, including those with disabilities and the aged.

Controls – Design

i. Developments will be required to provide articulated and active frontages. Expanses of blank walls or dark obscured glass are not appropriate.

ii. Skillion and/or peaked roofs are preferred within the Village Centre.

iii. The ground level of developments and associated landscaping is to be at generally the same finished level as the footpath system immediately adjacent to the site. Elevated ground or podium levels are not permitted.”

51. The site is located in Precinct D, where the following relevant controls in contention in chapter 6C Part 8 apply:

“8.1 Background

Precinct D (Commercial Accommodation) currently contains a range of accommodation styles, including dwelling houses, residential flat buildings and tourist and visitor accommodation. The generally non-commercial nature of development, combined with a number of prominent mature trees located on private land, contribute to the low key landscape character of the Lennox Head Village Centre. From both pedestrian amenity and traffic management perspectives, it is considered desirable that there be no intensification of existing traffic access from Ballina Street within the Precinct. Traffic amenity impacts within Raynor Lane and Rutherford Street will be assessed in accordance with section 4.3 Impact on amenity, as contained in the Guide to Traffic Generating Development (RTA 2002). Redevelopment of allotments located on the eastern side of Ballina Street shall obtain vehicular access from either Rayner Lane or Rutherford Street. Redevelopment of allotments located on the western side of Ballina Street shall obtain vehicular access from Park Lane.

8.2 Preferred Land Uses

The preferred land use within this Precinct is short term tourist and visitor accommodation such as serviced apartments, motels and the like. Shop top housing, as well as commercial activities fronting Ballina Street that are ancillary to tourist and visitor accommodation, (such as restaurants or cafes) are also encouraged.

8.3 Development Controls

Building Design

• Building facades fronting Ballina Street, Rutherford Street or Raynor Lane are to be articulated at intervals of approximately 5 metres horizontally. For example, if a building occupies a 15 metre frontage, it should appear as though there are three separate shops with 5 metre frontages. Similarly if a building fronting Raynor Lane, contains a number of individual dwellings each dwelling shall be appropriately articulated.

• Articulation may be achieved via window separations, signage, setbacks, colours, changes of building materials etc.

• Where ground floor levels comprise non-residential land uses, an active and accessible street frontage shall be provided at the same level of the footpath. An active street frontage shall have a minimum 50% clear glazing and shall consist of one or more of the following:

- a shop front,

- commercial and residential lobbies,

- a café or restaurant if accompanied by an entry from the street, or

- a public building if accompanied by an entry from the street.

Building Setback

Ballina Street

• A line perpendicular to the northern boundary of the site and 2 metres from its north-western corner. Setback area is to demonstrate consistency with the Lennox Head Village Centre Landscape Master Plan (see Appendix A).

Rayner Lane

• 2 metres from property boundary following land dedication.”

52. The experts agree that Rayner Lane does not need to be activated and that ground floor residential is contextually appropriate.

53. Ms McCabe, town planning expert for Council, gave evidence that the E1 zone is the lowest order centre and that the site is located on the fringe of the commercial centre. The zone limits the type of residential accommodation permitted, citing shop top housing as a use that, by definition is required to provide a commercial or health services ground floor use that would activate the street. The main activity of the Lennox Head Village occurs on Ballina Street and the purpose of the zone is to provide for a range of commercial activity.

54. Ms McCabe says that some forms of residential development are permitted, but with a purpose to contribute to a vibrant and active local centre consistent within the strategic planning framework. This framework is found at chapter 6C of the BDCP and other strategic documents such as Lennox Head Strategic Plan 2023-2043 (2023 Lennox Strategic Plan) and the Ballina Shire Local Strategic Planning Statement 2020-2040 (LSPS).

55. Ms McCabe’s evidence is that chapter 6C control 4.1 Building Design calls for articulated and active street frontages for new development. The proposed presentation to Ballina does not activate the façade to appear as three shops. The residential dwelling located on Ballina Street does not activate the frontage and will detract from the commercial activity and vibrancy needed in a centre, inconsistent with the objectives of the E1 zone, chapter 6C part 2 and the Precinct D controls. The retention of the driveway from Ballina Street impacts on the useability and safety of the pedestrian thoroughfare where a rear land access is available. The residential use at street level along Ballina Street, lack of open design elements, and lack of activation is incompatible with the purpose of the E1 zone. Ms McCabe says that the policy framework does not call for a transition within the zone.

56. Mr Roberts, town planning expert for Brand, gave evidence that the proposed development provides a form of expressly permissible residential development that does contribute to a vibrant and active local centre. The development will bring residents into the centre who will utilise the commercial uses.

57. The proposed development also provides a transition between existing residential development on the site and to the south, from the commercial development to the north. The additional dwelling proposed is consistent with the local area, characterised by residential uses.

58. Mr Roberts says that while chapter 6C applies to all development, the purpose is for its application to commercial development, and therefore should be given limited weight to this residential proposal. The 2014 DA approval at adjoining 47 Ballina Street was granted consent for a development that was not primarily visitor and tourist accommodation, applying flexibility to the BDCP’s preferred land use.

59. Mr Robert’s evidence is that the development will result in high accessibility and amenity to the residential occupants in a modern dwelling with an attractive street presentation that will contribute to the diversity of the area.

60. Ms Reid submits in relation to cl 2.3 of the BLEP, that to ‘have regard’ to a zone objective is to ‘consider it’ and take it into account. The objectives are to be considered as a fundamental element or focal point: Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 at [98]-[100] (Capital Airport Group). Dwelling houses being a permissible use does not imply that the form of the proposal is consistent with the objectives: BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 [117]-[118] (BGP Properties). Permissibility of a development is the first gate and once passed, regard is to be had to the relevant objectives. Council submits that the permissible use can be achieved where it is consistent with the objectives of the zone. Relying on Ms McCabe’s evidence, the location of the existing dwelling facing the laneway is consistent but the new dwelling on Ballina Street is not. The proposed dwelling on Ballina Street would undermine the strategic intent of encouraging commercial investment and an active frontage.

61. Ms Reid submits that Mr Roberts has not specifically engaged with the zone objectives except for the third objective regarding residential development that contributes to a vibrant and local centre. Mr Roberts addressed the objects of the EPA Act and aims of the BLEP, which are not relevant mandatory considerations. Ms McCabe considered each of the relevant objectives in her evidence.

62. Dr Smith submits that the Council’s listing of the zone objectives and assertions that the amended DA does not comply are not reasons for refusal. It is the relevant controls that the DA must be assessed against. Clause 2.3 of the BLEP does not require the zone objectives to be ‘achieved’, or consistency with any of them by the development. Clause 2.3(2) requires that regard be had: Ali v Liverpool City Council [2009] NSWLEC 1327 at [23]. Dr Smith submits that the zone objectives do not control development but set a framework which the BLEP operates and reflect competing demands on development: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 at [42].

63. Dr Smith submits that it is reasonable to assume that the site is suitable for the permissible use a dwelling, subject to demonstrating that the environmental impacts have been reasonably ameliorated: BGP Properties at [117]-[119] and Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 at [76]. The proposed dwelling house is permissible, located away from the heart of the commercial area and transitions at the edge of the zone.

64. Dr Smith submits that chapter 6C of the BDCP sets out the purpose, which is to identify Council’s requirements relating to commercial development in Lennox Head. The development is not commercial and the commercial DCP controls do not apply. In any event, any preferred land uses in section 8.2 of chapter 6C of the BDCP do not dictate permissibility. Chapter 4 Residential and Tourist Development of the BDCP applies, and no contentions have been raised regarding these controls.

Consideration

Consideration of E1 Local Centre zone objectives

65. As required by cl 2.3 of the BLEP, I must have regard to the objects of the E1 zone. I accept the submissions that only the relevant objectives apply, there is no hierarchy and accept Council’s submissions that ‘regard’ means ‘to consider’ as a focal point or must give weight to as a fundamental element in considering the DA: Capital Airport Group at [98]-[100].

66. I accept the agreement of the experts that there are no concerns with the dwelling house facing Rayner Lane (to the extent applicable, noting my previous finding about the characterisation of works to that dwelling). In considering the objectives that are relevant to the proposed development, I accept Ms McCabe’s evidence about the impacts of the proposed new dwelling on Ballina Street and the local centre for the following reasons.

67. I find that four of the objectives in E1 Local Centre zone are relevant to the proposed development as they relate to residential development or physical attributes of the proposed building.

68. In relation to the objective “to enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area”. Mr Robert’s evidence is that the proposed development does contribute to an active local centre through the future residents/occupants and also provides a transition to the adjoining development.

69. I accept Ms McCabe’s evidence that there is no objective in relation to transitions between development.

70. I accept Ms McCabe’s evidence that the Ballina Street facing dwelling does not activate or provide an active face to the main access way through the centre.

71. I accept Ms McCabe’s evidence that the lack of activation, caused by its low density residential use and high, blank wall design, and prominent vehicular driveway, will detract from the commercial strip and vibrancy sought to be enabled. The only activity that occurs is through the vehicular movements across the frontage and the residents (and their guests) entering or exiting the site. I do not accept these elements as being ‘active’ in a commercial strip and local centre.

72. The objective also seeks to enable such residential development in a manner that is consistent with Council’s strategic planning for residential development. It is firstly true that the development is permissible. However, I accept Council’s submissions and Ms McCabe’s evidence that the proposed residential dwelling on this part of the site facing Ballina Street is not consistent with Council’s residential strategic planning.

73. Firstly, the commercial controls and objectives in chapter 6 of the BDCP seek to promote an active street experience and minimise the impact of buildings on the streetscape. The design of the development effectively turns its back on the commercial strip and offers very little to activate it by its high blank walls and development’s own vehicular and pedestrian movements as I have set out previously.

74. Secondly, the LSPS (Ex 4) seeks to locate lower density development in outlying areas. The place based strategic plan for Lennox Head states that a range of densities should be provided in Lennox Head, with ‘higher densities located closer to activity nodes and lower densities in outlying areas’ (folio 1151). Locating a low density dwelling in the commercial strip of Lennox Head, which I consider a type of activity node, is contrary to the residential strategic planning within the LSPS.

75. Thirdly, though with less weight as my understanding is that the LSPS is the currently endorsed key strategic planning document, is the strategic planning within the Lennox Head Community Aspirations Strategic Plan 2002 (2002 Lennox Strategic Plan) (Ex 4 Tab 13). Council submits that the 2002 Lennox Strategic Plan informed the LEP and DCP. Within this plan, the strategic principles include housing diversity and the location of higher density housing closer to activity nodes (folio 522). The principles include the continuation of the Lennox Head centre as a ‘clearly defined area where people can meet, interact and socialise’ and promote the village centre as the ‘commercial and social “heart” of the district’ (folio 524). The strategic actions from folio 526 onwards for the Lennox Head area includes higher density residential in activity nodes, low density residential in outlying areas, low scale dwellings and no expansion of the Lennox Head centre - which should not compete with higher order centres. Based on the above and the evidence of the design and centres hierarchy given by Ms McCabe, I find that the proposed low density dwelling facing the commercial strip is inconsistent with the Lennox Strategic Plan as it is contrary to locating higher density residential within the activity node of the centre.

76. Fourthly, the more recent 2023 Lennox Strategic Plan (Ex 4 Tab 13b) includes character statements for the Lennox Head Village area and locality objectives. Relevantly, these include an objective to increase residential areas. Shown on the Lennox Head Village Centre map (folio 626-627), the site is located in the commercial centre. The key actions include increasing building heights up to 10m, investigation of commercial planning controls, and incentives for underground commercial parking. The locality objectives include an increase in medium density housing, height flexibility to minimum residential floor area controls in the centre, and improvements to pedestrian access to the centre. In my view, the 2023 Lennox Strategic Plan and the other strategic planning documents seek to retain and increase medium to higher density residential development within the centre, but do not encourage low density residential development along the main commercial strip of Lennox Head.

77. I therefore accept that the proposed dwelling facing Ballina Street does not enable an active or vibrant residential development and is inconsistent with the Council’s strategic planning for residential development.

78. In relation to the objective “to ensure that new development provides diverse and active street frontages to attract pedestrian traffic and contribute to vibrant, diverse and functional streets and public spaces”, I accept the evidence of Ms McCabe that the proposed development does not provide an active street frontage as set out at [68]. The object seeks to ‘ensure’ new development provides this type of frontage in order to attract pedestrian traffic and contribute to a vibrant street and place. Whilst it might be diverse, the design of the low density dwelling provides no activation through its high, blank wall design. The vehicular and pedestrian egress, that would only be used for the residents and their visitors of the new dwelling, results in a quiet, low use and blank street frontage that does not contribute to a vibrant functional street and public space. The design of the Ballina Street dwelling does not provide an active street frontage that would attract pedestrian traffic that contributes to the vibrancy of functionality of the street in the local centre zoning.

79. In relation to the objective “to encourage development that - … (c) is compatible with the hierarchy of centres”, I accept Ms McCabe’s evidence and Council’s submissions. The LSPS and BDCP outline that the Lennox Head commercial centre is to be retained and not compete with other centres. The small strip and relatively low scale height controls reflect the village scale sought by the strategic planning documents and applicable BLEP and BDCP controls previously outlined. The proposed low density residential dwelling disrupts that hierarchy through its very low, non active, non commercial/community use and design. Medium and ‘high density’ residential development is encouraged for this village centre, and I find that a low density residential dwelling facing the main strip derogates from the hierarchy of centres. I accept the evidence that a low density dwelling facing the rear lane would be compatible.

65. In relation to the objective “to encourage business, retail, community and other non-residential land uses on the ground floor of buildings”, it is commonly agreed that the proposed low density dwelling house is, of course, residential. I give less weight to this objective, acknowledging that it seeks to encourage certain uses on the ground floor. Ultimately, not all objectives are relevant to all permissible uses. When read with the other relevant objectives, it supports Council’s submissions that the zone seeks activated, ground floor developments.

66. Taking into consideration the relevant objectives of the E1 Local Centre zone, the proposed development presents an inactive, primarily blank wall presentation to the Lennox Head Village Centre along Ballina Street. The proposed design of the residential development does not make an active or vibrant contribution on the ground floor to the street, and would result in the opposite effect. These environmental impacts warrant refusal.

67. A low density dwelling facing the commercial strip derogates from the hierarchy of centres and is inconsistent with Council’s residential strategic planning. Contrary to the evidence of Brand’s expert in the Planning JER, the proposed development would not promote the objectives of the EPA Act, including s 1.3(c) to promote the orderly and economic use of land and s 1.3(g) to promote good design and amenity of the built environment. Accordingly, with consideration of the evidence and giving weight to the relevant objectives of the zone, I find that these likely impacts of the development warrant refusal (s 4.15(b) of the EPA Act).

BDCP

83. I firstly accept Ms Reid’s submissions that chapter 6C Commercial Development Lennox Head of the BDCP does apply. I accept Council’s submissions that chapter 6C (Ex C folio 430) states under the heading of ‘Application’ that the chapter applies to ‘all E1 zoned land in Lennox Head’ and ‘All development types’, which I find means that the chapter applies to all forms of development in the E1 zoned land. There are also references throughout the chapter to controls for dwelling houses and secondary dwellings (including at controls 5.1, 8.1, 8.2 and 8.3) that supports the finding that the chapter applies to all development types. For these reasons, I place primacy in the ‘application’ heading over the ‘purpose’ heading. I find that chapter 6C applies to the proposed development.

84. In considering the evidence and submissions made about one of the preferred land uses for visitor and tourist accommodation not being permissible, it is unclear to me on the evidence tendered if this is a reflection of a historic permissible land use, allowable as an additional permissible use outside of the land use table, or an error in the BDCP. I accept that a preferred land use in a DCP does not create a mandate for all new development to provide that land use.

85. In considering the submissions, zone objectives and chapter 6C of the BDCP, I find that the intention for the Lennox Head Village Centre is clear. The objectives and controls seek to encourage an active, articulated ground floor area fronting Ballina Street and an articulated built form (commercial, tourist, residential or otherwise) along Rayner Lane. That is evident from the chapter 6C character statement and controls, background section at 8.1 for Precinct D and as observed at the site viewing, new development in the local centre. The preferred land uses stated in the BDCP lends support to the encouragement of commercial or tourist accommodation within the Lennox Head Village Centre. This is also reflected in the objectives of the zone, which I have dealt with.

86. I accept Council’s submissions that residential is permitted in the zone, but that the design and placement of the residential accommodation is important here. The issue is the design and placement of the dwelling facing Ballina Street, the main street of the local centre. Based on the agreement of the planning experts, I accept that existing dwellings in the E1 zoned area were constructed over 40 years ago, ranging in construction from 1940’s-1980’s and therefore do not necessarily reflect the intention of the current planning framework.

87. It is agreed that there are no issues pressed for the rear part of the development facing Rayner Lane. The issues are in relation to the Ballina Street dwelling. The front setback of the proposed dwelling as viewed from Ballina Street comprises a front in, front out driveway, carport with screened bin and storage area, landscaping, pool equipment area, and pedestrian access of approximately 1m wide located halfway through the 5.2m to 3m high wall facing Ballina Street.

88. I note that the wall dimensions are approximate. The architectural plans provide very little detail of any measurements or RLs, in particular drawing sheet number A-DA-202.

89. The BLEP prohibits the genus ‘residential accommodation’ in the zone but permits some of the species, including boarding houses, dwelling houses, shop top housing and secondary dwellings in the E1 Local Centre zone.

90. Stated in the BDCP, chapter 6C of the BDCP takes primacy over several chapters, including Ch 4 residential. In my view, chapter 6C of the BDCP envisages that residential development would occur above ground level (i.e first floor or above) or on the ground floor along Rayner Lane as reflected in the building design controls in Table 6c.3. Dwellings are also encouraged in both the precinct and above the ground floor in control 5.2 preferred land uses. However, there is no LEP or DCP control that specifically does not permit ground floor residential facing Ballina Street.

91. The controls in chapter 6C 4.1 require development to provide articulated and active frontages and state that blank walls are not appropriate. This is consistent with the planning objectives in Part 2, to minimise building impacts on the streetscape and promote an active street experience (objective d), and the objectives of control 4.1 (objective a), to provide a high quality built environment which complements the location and atmosphere of the Village Centre. Control 8.3 building design requires an articulated built form at intervals of approximately 5m to achieve articulation.

92. I accept and prefer Ms McCabe’s evidence that the proposed development does not provide appropriate activation or articulation sought by the controls for the following reasons.

93. The proposed design does not provide any articulation or activation of the local centre as sought by controls 4.1 and 8.3 building design in chapter 6C of the BDCP and the objectives of the zone.

94. The proposed front setback area, primarily designed for vehicular manoeuvring, is dominated by a blank concrete wall that is part 5.2m and part 3m in height with a 1m break for pedestrian egress (with views to another brick wall directly behind it). On the site plan (drawing A-DA-002) this wall is described in words as a 5.2m proposed privacy wall, which aligns with the scaling taken of drawing A-DA-202. The blank wall conditions provide very low activity to activate the frontage, in a local centre zoning. This is contrary to the BDCP controls that seek an active frontage generally (control 4.1) and articulation every 5m (control 8.3, building design). The proposed design is also contrary to control 4.1, which states that expanses of blank walls are not appropriate. The open carport with bin storage area does not provide any better articulation or activation of the frontage as sought by controls 4.1 and 8.3 of chapter 6C.

95. I accept Brand’s submissions that the last control under 8.3 building design does not apply as the proposal is for a residential use.

96. The proposed development is contrary to the controls 4.1 and 8.3 and also does not meet the objectives of chapter 6C of the BDCP in relation to providing building articulation or an active frontage, and instead presents to the commercial streetscape a high, blank wall with a front setback dominated by a driveway and some landscaping to the Lennox Head commercial centre along Ballina Street. For the reasons stated above, I find that the proposed development does not meet the controls or objectives of chapter 6C of the BDCP and warrants refusal of the DA.

Issue – The draft LEP

97. The hearing was reopened on 3 December 2024 in relation to the draft LEP. The evidence tendered included the exhibited planning proposal and relevant objections to the draft LEP submitted to the Council by representatives of Brand. Council confirmed that other submissions had been received that were not relevant to these provisions or Lennox Head.

98. The draft LEP contains a variety of changes, some of which are characterised as ‘housekeeping’ amendments to the BLEP. Of relevance, the draft LEP proposes:

1. Prohibition of dwelling houses in the E1 Local Centre zone,

2. Inclusion of Lennox Head (including the subject site) in cl 7.13 Active Frontages, and

3. No savings provision.

99. Mr Young for Brand submits that the changes would potentially have a catastrophic effect on the application, which has been on foot since 2022. I accept these submissions as the proposed development would prohibit the proposed use.

100. Mr Young submits that the planning proposal does not have draft LEP status as it has only recently finished public exhibition and is not in the form of a draft instrument that would amend the BLEP.

101. Ms Reid submits that the planning proposal is a draft LEP as the planning proposal contains the wording that will amend the BLEP. I accept these submissions and find that the proposed wording and mapping, to the standard of a draft instrument, is known. Page 6 of the planning proposal details the exact proposed wording amendments to cl 7.13 and includes the proposed active frontage maps. Page 8 details the exact wording to prohibit dwelling houses through placing the land use of dwelling houses into the list of prohibited uses in the BLEP.

102. Having accepted that the planning proposal is a draft LEP, I accept that the approach to the weight to be afforded to the draft LEP under s 4.15(1)(a)(ii) is based on the certainty and imminence of the making of the draft instrument see: Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 at [33] (Haywood).

103. Mr Young submits that little to no weight should be given the draft LEP. It has only just completed exhibition and cannot be imminent and certain. It was submitted that the form and content of the amended LEP is not known to the Court. There is not a high degree of certainty, and the planning proposal is the reverse of the facts in Mathers v North Sydney Council [2000] NSWLEC 84 at [30]. More weight should be afforded to the adopted DCP that was subject to community consultation (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87]) and that the planning proposal is not a result of long term strategic planning (Aldi Foods Pty Ltd v Holroyd City Council [2004] NSWLEC 253 at [43]).

104. Ms Reid submits that the draft LEP has been exhibited and is targeted to return to Council at the 12 December 2024 Council meeting for endorsement. In relation to the salient provisions, the Respondent submits there are no changes proposed by Council staff to the draft LEP. It was submitted that as Council is the plan making authority, the endorsement by the elected Council is essentially the last step and should be given determinative weight. The draft LEP supports the case argued by Council in these proceedings and is the result of strategic planning work strategies that were provided in the bundle of documents.

105. In considering how imminent the draft LEP is, I accept that the delegation of plan making authority to Council by the Department of Planning, Housing and Infrastructure (Department) removes a further layer of review and approval from the process.

106. I have already found that I accept the draft instrument is adequately detailed in the planning proposal, which accordingly provides a relatively high degree of certainty to the draft LEP. I accept Ms Reid’s submissions that any further changes are likely to be ones of detail and not substance: Haywood at [33].

107. However, I accept there is some uncertainty regarding the practical last step, being the elected Council’s (being the body politic) consideration of community submissions and whether the elected Council will adopt the staff’s recommendations, make their own changes to the draft LEP, or defer the decision. In my view, this also has implications on how imminent the draft LEP is.

108. With consideration that a number of decision pathways are open to the elected Council, the imminency is unclear. A critical pathway decision still needs to be made by the plan making authority at a Council meeting, including their consideration of community submissions and the Council staff’s report.

109. On this basis, I have not been able to place determinative weight on the draft LEP.

Conclusion

110. On the basis of the proposed development’s impacts on the Lennox Head local centre, namely the lack of streetscape activation to the commercial strip, I find that the proposed new dwelling does not meet the controls or objectives in relation to activation or building articulation of chapter 6C of the BDCP and should be refused.

111. In having regard to the objectives of the zone, I find that the proposed development does not provide a residential development that contributes to a vibrant and active local centre and is inconsistent with the Council’s strategic planning, amongst other related objectives. These likely impacts of the proposed development warrant refusal pursuant to s 4.15(1)(b) of the EPA Act.

Orders

112. The Court orders that:

1. The appeal is dismissed.

2. Development application number 2022/333, as amended, for the staged development comprising stage 1 for strata subdivision into two lots and erection of a carport; and stage two for construction of a two storey dwelling house at 43 Ballina Street Lennox Head, is refused.

3. The exhibits are returned, except for exhibits 1, A, B, and C

……………………….

S Porter

Commissioner of the Court

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Decision last updated: 11 December 2024