Greenview Developments Pty Ltd v Tweed Shire Council

[2006] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION:

Greenview Developments Pty Ltd v Tweed Shire Council [2006] NSWLEC 131

PARTIES:

APPLICANT
Greenview Developments Pty Ltd

RESPONDENT
Tweed Shire Council

FILE NUMBER(S):

10920 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Visual impacts, extent of land reforming, development staging, endangered flora

LEGISLATION CITED:

Tweed Local Environmental Plan 2000
Development Control Plan No. 14
Development Control Plan No. 16 - Subdivision Manual

CASES CITED:

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING:

20-21/03/2006

 
DATE OF JUDGMENT: 

04/07/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen, barrister
Instructed by: Ms M Peatman
Of: Hunt & Hunt

RESPONDENT
Dr S Berveling, barrister
Instructed by: Mr M Delaney
Of: Stacks/Northern Rivers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

10920 of 2005 Greenview Developments Pty Ltd v
Tweed Shire Council
JUDGMENT

Background

1 This appeal was lodged against council’s deemed refusal of a development application for a 331 mixed-lot subdivision, comprising 315 residential lots, 8 rural residential lots, 7 public reserve/open space/drainage reserve lots and 1 lot for a shopping centre precinct. The subject land comprises 44.6 ha and is situated in the residential release area of West Murwillumbah.

2 For the appeal, a number of issues were identified, but conferencing between the parties reduced the outstanding issues to the suitability of the development in terms of the amount of earthworks involving cut and fill, visual impacts of the proposal, development staged construction and the effect on the endangered flora – Davidsons Plums.

The site

3 The site is known as 26 Old Lismore Road, Murwillumbah, and it has a total area of 44.6 ha, comprising the following lots:

• 1 251297
• 1 1070242
• 8 1064245
• 10 & 11 864158
• 1 1046935
• 132 1057733
• 201 825699
• 3 1074167

4 The site fronts Kyogle Road to the south, Riveroak Drive to the east, Castle Field Drive to the north, and is bisected by Old Lismore Road. It forms a significant component of the “West Murwillumbah Urban Release Area” and it directly connects with previously completed subdivisions in Riveroak Estate and Bellevue Heights Estate.

5 The land ranges significantly in elevation from low lying watercourse areas to hilly terrain, with more than 50% of the site having slopes greater than 20%. A considerable part of the land has been cleared for grazing purposes, although sections of remnant vegetation remain. An endangered species the Davidsons Plums (Davidsonia jersyana), exist on the site.

Planning controls

6 Tweed Local Environmental Plan 2000, (TLEP) Under this LEP, the land is multi-zoned and comprises mainly: 2(c) Urban Expansion, but also includes parts 1(c) Rural Living, 6(b) Recreation and 1 (b2), Agricultural Protection.

7 The minimum site area permissible under the TLEP for each zone for the purpose of a dwelling house is identified in following Table 1:

TABLE 1

Zone Minimum Site Area

2 (c) Urban Expansion 450 sq m.

1 (c) Rural Living 4000 sq m (0.4 ha), if connected to council’s reticulated sewerage system.

6 (b) Recreation Only for caretaker's
purposes, unless satisfies TLEP cl 14(3) NB. No stipulated lot size.

1 (b2), Agricultural Protection 40 ha. NB. Smaller lots may be permissible under

TLEP cl 20(3).

8 The TLEP contains aims of which the following were identified as relevant in this matter:

(a) to give effect to the desired outcomes, strategic principles, policies and actions of the Tweed Shire Council 2000 + Strategic Plan, which was adopted, after extensive community consultation, by council on 17 December 1996, the vision of which is: "The management of growth so that the unique natural and developed character of the Tweed Shire is retained, and its economic vitality, ecological integrity and cultural fabric is enhanced", and

(b) to provide a legal basis for the making of development control plans, which provide more detailed local planning policies and other provisions that provide guidance for future development and land management, …

9 The relevant objectives of the TLEP 2 (c) Urban Expansion Zone are:

Primary objectives

• to identify land for urban expansion (which will comprise mainly residential development, focused on multi-use neighbourhood centres), and to ensure its optimum utilisation, consistent with environmental constraints and the need to minimise residential landtake.

Secondary objectives

• to allow associated non-residential development, which meets the recreation, shopping, commercial, employment and social need to future residents.
• to ensure that sensitive environmental areas within and outside the zone are protected from any adverse impacts of development.

10 The relevant objectives of the TLEP 1 (c) Rural Living zone are:

Primary objectives
• to enable rural residential development in selected areas, possessing particular environmental and servicing attributes, which do not compromise the viability of rural activities on land in the vicinity, do not detract from the quality of the rural and natural environment and do not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.

• to provide rural residential development of a design integration, quality and scale compatible with, and making positive contribution to the character of the rural area in the vicinity.

  Secondary objectives

• to enable other development that is compatible with the residential development.

11 The relevant objectives of the TLEP 6 (b) Recreation Zone are:

Primary objective

• to designate land, whether in public or private ownership, which is or may be used primarily for recreational purposes.

Secondary objective
• to allow other development that is compatible with the primary function of the zone.

12 This DCP came into effect on 26 September 1991 and applies to the subject land. It contains aims and objectives, which include:

• To implement the Tweed Shire Residential Strategy 1991.
• To ensure the orderly and economic development of land, taking into account all relevant physical, social and economic considerations.
• To encourage a range of housing opportunities within a relatively low density, high-quality residential environment.
• To encourage the efficient use of land to facilitate an economic arrangement of buildings, circulation systems and utilities.
• To integrate the release area with the existing urban areas of Murwillumbah.

13 The Aims and Objectives (environmental protection and landscape) of DCP 14 are:

• To ensure the recognition and protection of significant landscape features and systems, primarily those relating to topography, watercourses and vegetation.
• To ensure opportunities to utilise the positive features of the natural landscape are maximised to create a high quality environment.
• To encourage regeneration of natural vegetation and to ensure a comprehensive landscaping and environmental enhancement program forms part of any development plan.
• To ensure that development strategies, consider the landscape impact of development, both from external and internal viewpoints.
• To provide buffers around existing land uses incompatible with future uses.
  

Development Control Plan No. 16 - Subdivision Manual

14 This DCP 16 came into effect on 1 July 2003 and applies to the subject subdivision development. Its Aims and Purposes are:

(a) to present council’s strategic plan objectives for the development of subdivisions,
(b) to achieve the highest quality and "best practice" of subdivision development in the Shire,
(c) to implement the policies and the provisions of the NSW State Government in terms of seeking to achieve quality of subdivision planning and development,
(d) to provide guidelines and development standards for the development of subdivisions.

15 Section 4.2.2 deals with land forming, whereby proposals to alter natural landform must:

• not adversely impact other land, persons or public infrastructure,
• preserve levels at site boundaries,
• preserve significant natural watercourses, riparian vegetation, environmental and topographical features,
• preserve the visual character of the landform as viewed from within and outside the land site,
• preserve cross boundary drainage conditions,
• ensure runoff from upstream or upslope land is not adversely impeded,
• ensure there are no adverse geotechnical consequences to the site or the other land,
• ensure there are no adverse consequences to public infrastructure,
• minimise earthworks.

16 Appendix A of the DCP refers to a number of design specifications of which D2 - Site Regrading is relevant in this matter. Section D6.02 states:

Principles For Site Regrading Proposals

1. Site Regrading and landform changes shall be designed, in accordance with the following principles:

(a) Site regrading must not adversely impact other land, persons or public infrastructure.
(b) Pre development levels should be preserved at external boundaries, preferably without the use of boundary retaining walls exceeding 1.2m in height. The application of this principle may be varied in infill subdivisions in flood liable areas where there is general filling to provide flood immunity.
(c) Natural watercourses, riparian vegetation and significant environmental features should be preserved.
(d) The visual character of the landform as viewed from both within and outside the land should be preserved.
(e) Cross boundary drainage conditions shall be preserved …
(f) There must be no adverse geotechnical impact or risk caused to other land.
(g) Earthworks are to be minimized.
(h) Cut, fill, batters, retaining walls and associated rate are to comply with the specification.

17 Section D 6.05 contains land forming geometric criteria dealing with flat earth platforms, the provision of retaining walls or cut/fill batters on allotment boundaries. Specific reference is also made to the following overall cut/fill provisions:

3. The proportion of subdivision or development site (plan area) that contains cut or fill areas with finished surface levels that depart from natural surface levels by more than 5 m shall not exceed 10%.

18 This was referred to as the 5m/10% rule.

19 Detailed evidence on behalf of the council was presented by:

• Mr I. Lonsdale, senior development assessment planner, Tweed Shire Council (Exhibit 5),
• Mr P. Knight, engineer (Engineering and Operations), Tweed Shire Council (Exhibit 6),
• Ms S Pimm, senior environmental scientist, Tweed Shire Council.

20 For the applicant, detailed evidence was presented by:

• Mr G. Glazebrook, consulting town planner, (Exhibit D),
• Mr R. Player, consulting town planner, (Exhibit F),
• Mr M. Findlater, consulting engineer (Exhibit E),
• Mr B. Donovan, consulting horticulturalist (Exhibit G).
• Mr J. Warren, consulting environmental scientist-ecologist (Exhibit H).

21 The principal contested issue concerns the amount of land forming in terms of its non-compliance with the provisions of sections 4.2.2 and D 6 and the resultant environmental impacts. Mr Knight, initially estimated the amount of cut and fill earthworks to be in the order of 720,000 cubic metres. This work includes the filling of natural depressions and cutting hilltops by up to 15 m.

22 In order to deal with the issues, joint conferencing was undertaken by the respective experts. From the joint engineers’ conference, there was agreement that the development comprises significant land reforming and the amount of change to the surface levels by more than 5 m was 20.7%. They also agreed that the revised proposal satisfactorily addressed impacts on the adjoining land and catchment drainage.

23 Mr Findlater acknowledged the variation from the 5m/10% rule but supported the proposal on the basis that it represents best practice and is site responsive to the existing land topography and generally in accordance with the provisions of DCP 14, in particular the Plan No. DCP 14-3. This plan indicates the future local road network for the Release Area, which requires connection to adjoining properties at specific points. Accordingly, this plan shows a primary road link between the existing intersection at Castle Field Drive (designated A) and Old Lismore Road (designated B), together with an internal road layout – refer to Sketch AB.

24 Insofar as Mr Knight considered the hilltop excavation work, involving cutting approximately 15 m near Point A, as first priority and particularly unsatisfactory, Mr Findlater disagreed for a number of reasons, including:

• opportunities to vary the alignment of the primary road A-B has to be considered in conjunction with the associated design Specification D1 which specifies the site distance, vertical curve geometry, grades through intersections and access to properties;
• the alignment of this link road is constrained by the end conditions imposed by council’s existing road system;
• further constraints are imposed by the Design Specification D1 preference for a maximum grade of 10% (absolute maximum of 16%) for Local Access Roads and an absolute maximum 12% (preferred maximum 8%) for Neighbourhood Connector roads;
• consideration has to be given to the connectivity requirements in terms of the preferred maximum spacing of roads in the development of 240 m;
• satisfactory access to properties has to be provided and D1.22 states that access should not exceed 25% and road street grades in excess of 12% should be minimized;
• suitable overland flow paths should be provided to trapped catchments;
• ideally cut/fill balance should be achieved to minimise external disamenity and construction costs.

25 In order to assess the impact of the various cut and fill proposals, Mr Knight presented his priority plan (Exhibit 13) which identified his main areas of concern.

26 However, in response to these concerns raised by Mr Knight, Mr Findlater prepared an alternative road alignment for A-B (Exhibit L), as suggested by Mr Knight. But Mr Findlater says that this makes no significant difference in earthworks, because even though there is less cut in places, there is correspondingly bigger fill and the overall change in surface reforming would be a reduction in the order of approximately 1%. Furthermore, this revised alignment would complicate other local road connections and exacerbate access gradients to some of the proposed new lots.

27 Having considered the competing evidence and undertaken a view, it is apparent that council’s existing road system provides significant road connection constraints. At Point A, the relatively recent construction of Castle Field Drive, is the obvious connection point for the road link to Old Lismore Road. However, it appears that any road connection will inevitably require significant cutting of the nearby hill to the south, either on the proposed alignment, or the alternative alignment, if a satisfactory transition to the existing road pavement is to be achieved. Whilst the vertical alignment may be raised to a relatively minor extent, this option is limited, if the safe transition to the existing pavement is required, together with safe intersections with the other local roads.

28 Notwithstanding this, it is still likely that the horizontal deviation preferred by Mr Knight would result in significant side cutting of the hill and possible need for stabilization/embankment retention. Consequently, the visual impact of this cutting is likely, in my opinion, to be less acceptable than the proposed overall cutting of this hill, to allow the centrally placed road and complimentary side filling and battering.

29 In this regard, I note that Mr Knight agreed that balancing of cut and fill on the site was a worthwhile objective. As the proposal achieves this objective, I also consider it is a positive environmental aspect of the proposal.

30 However, the consideration of the proposal revealed another significant constraint on the land. This constraint concerns, the low-lying nature of Old Lismore Road, which generally traverses through the middle of the site. Because of the low-lying nature of this road, council requires the road reserve to be substantially filled in the order of 5 m, to overcome flooding problems. Consequently, further filling is required outside the road boundaries for the new lots to grade towards the road, so as to avoid undesirable side table-drains or inter-allotment drainage.

31 Mr Findlater, estimated the filling works on this road reserve would affect a surface area equivalent to approximately 1% of the site. When the associated filling, adjacent to the road reserve is considered, this would represent work on a surface area of approximately 5% of the site. These estimates were not challenged by Mr Knight. Therefore, if an allowance is made for these essential filling works, occasioned by the low lying nature of the public road, the resultant surface area land forming of the other private subdivision land would be in the order of 15.7% (i.e. 20.7 – 5).

32 In addition to the link road A-B, Mr Knight, also expressed dissatisfaction with the road connections to the existing cul-de-sacs to the east, created in the Riveroaks Estate. The view indicated that a reasonable expectation is for the extension of the existing cul-de-sac of Riverbend Way, otherwise the existing, steep topography at this connection, would be practically and visually undesirable in an urban development context. Accordingly, the proposal is for a neat join to the existing pavement, extending at a 5% centre line gradient, which then transitions to the maximum desirable road gradient of 12%, leaving little room to vary road grading.

33 Likewise, the overall plan confirms the benefits of extending the existing cul-de-sac at Oakbank Terrace, and it appears to me from the view that this was intended. However, this road alignment requires significant cutting so as to achieve the maximum desirable 12% gradient. Accordingly, the existing levels in Oakbank Terrace, necessitate additional surface land reforming. A similar situation occurs with the proposed extension of River Oak Drive.

34 Nevertheless Mr Findlater says that D6.02, Pt 2 allows departures from the principles for site regrading, where the impacts of the departures have been:

• analysed in terms of the impact on other land, persons and the environment (including landscape visual character) and public infrastructure;
• impact of changes to natural watercourses, drainage and riparian vegetation;
• any compensationary measures;
• assessed in terms of impact on affected adjacent landowners;
• assessed in terms of departures in the public interest.

35 In my assessment of the details on this issue, no compelling evidence was presented, which indicated that the aforementioned discretion should not be allowed, apart from the visual character impacts, which I deal with separately. The engineers agreed that the overall internal and external drainage was satisfactory and there will be no adverse impact on adjoining properties. Also, there would be a public interest benefit in providing the filling along Old Lismore Road to address a current flooding problem, which is currently unacceptable for an urban context.

36 I then accept Mr McEwen’s submission that some uncertainty surrounds the 5m/10% rule, and therefore it is reasonable to exercise the available discretion in D6.05 in this case. The uncertainty arises from a review of the approach taken in adopting this policy contained in s 4.2.2 of the DCP 16. In this regard, Mr Knight’s evidence contained the following summary:

5 June 2002 Council adopted Development Design Specification D6-Site Regrading as an interim policy for subdivision site works. It provided for preservation drainage systems, land forming geometric criteria, limitations of retaining wall and cutting heights;

4 December 2002 Development Control Plan No 16 -Subdivision Manual and design and construction specifications adopted for exhibition. It included s 4.2.2 land forming criteria and referred to Appendix A, and apparently provided for 8m/20 % surface disturbance, as previously allowed;

17 December 2002 Placed on public exhibition;

Various public consultation;

18 June 2003 Reports to council on submissions, with council approving DCP 16 and associated specifications, including D6 specifying the 5m/10% rule.

37 In cross examination, Mr McEwen referred Mr Knight to the technical report to council on the various public submissions. This report referred to submissions on the purpose of arbitrary restrictions in D5.05(4), dealing with maximum departure from natural surface levels, on the basis that the exhibited control provided:

D6.05 (3) The proportion of subdivision or development site (plan area) that contains cut or fill areas with finished surface level that depart from natural surface levels by more than 8 m, shall not exceed 20%

38 Mr Knight confirmed his comments to council on the submission as follows:

"The original D6 (Adopted by council in June 2002) required no more than 10% of site to have cut and fill over 5 m. The exhibited version relaxes that requirement. The objective of the condition is to ensure a limited retention on the natural land form, whilst allowing significant level change to accommodate the needs of the proposed land use."

39 Accordingly, Mr Knight recommended no change to the exhibited version, i.e. he effectively supported the exhibited 8m/20% rule. But council apparently then adopted, the more restrictive 5m/10% rule without further public consultation. Insofar as Mr Knight was questioned about the reasons for this more restrictive control, he was unable to provide any details of its basis, and therefore unable to assist with situations where it was appropriate to exercise discretion in the departures from the control, because he now supports the 5 m/10% rule as appropriate in this case.

40 Apart from this, it is now apparent that this control is subject to further review. On 7 February 2006 council exhibited draft amendments to DCP 16, DCP 47 and Specification D6, which Mr Knight said "illustrates the landforming policy is undergoing continuing development and fine tuning."

41 The proposed amendments to DCP 47 – Cut and Fill on Residential Land includes consideration to lots with slope of 10% or greater or where cut and/or fill exceeds 300 mm. Of particular relevance other proposed amendments to D6 includes:

Modification mass landform limit of no more than 10% of the site to have more than 5 m cut/fill level change, but with some flexibility of up to 15% if there is a demonstrated environmental benefit.

42 In summary then, I have carefully considered the 5m/10% control in the DCP and accept that some discretion is available in its application under s 6.02. It seems to me that when the recently identified test of environmental benefit is applied, the proposed subdivision balances cut and fill to minimise external environmental impacts, it provides site regrading to create lots with building areas that minimise the need for extensive retaining walls and batters, it complies with current requirement to raise the levels of Old Lismore Road above flood levels, and it provides satisfactory connections to the existing, adjoining road connections approved by council. In my opinion, it also demonstrates reasonable compliance with the specified easement on the property for a road reserve, which generally accords with Fig. 14.3 in DCP 14 and offers environmental benefits.

43 The associated matter of impact on visual character, arising out of the land forming was addressed by the respective planners. For this assessment, they considered the prevailing planning framework and agreed that there is an inconsistency between cl. 4.2.2 and cl. D6.05 to the extent that the former is presented as a performance criteria and the latter as a prescriptive criteria. Accordingly, both Mr Player and Mr Glazebrook were of the view that because of the consistency, the DCP should prevail and as such, the 5m/10% requirement is performance-based. Against this, Mr Lonsdale was of the view that the DCP and associated Design Specifications should be read in conjunction with one another, as a prescriptive criteria.

44 The planners also considered the process followed in adopting the 5m/10% rule. Both Mr Player, and Mr Glazebrook considered that the "Totem" principles set out in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 were not satisfied, because the adopted land forming criteria was different to that advertised and which public consultation was undertaken. However, Mr Lonsdale was of the view that the public consultation on the concept itself was sufficient to satisfy the principles.

45 Notwithstanding these disparate opinions, the provisions on DCP 16 must be considered. This DCP recognises that the topography of the land it covers is likely to involve some land reforming in the release area in order to achieve the desired conversion of this hilly, non-urban land to urban lots, some of which may have minimum areas in the order of 450 sq m. In essence, the landforming criteria provides that where it is proposed to alter natural land form, the proposal "must preserve the visual character of the landform as viewed from within and outside the land site."

46 Unfortunately, it appears that no detailed local environmental study was undertaken as part of the release area process, so as to identify actual topographical constraints and provide detailed development/subdivision control plans. It is obvious that the existing topography of the subject land requires significant regrading in order to create satisfactory, smaller residential allotments, as allowed by the LEP, which have acceptable residential amenity.

47 Consequently various neighbouring subdivisions have proceeded somewhat independently and provided connection points at their boundaries. The subject development follows this pattern and generally picks up these connection points and links them to the principal connector road through Points A and B. In order then to comply with the relevant engineering guidelines for road gradients, safe intersection spacing, drainage and allotment access, the land regrading is required.

48 A detailed visual assessment impact assessment was undertaken as part of the Statement of Environmental Effects. Both Mr Player, and Mr Glazebrook have referred to this assessment and undertaken their own visual impact assessment and agree that the application satisfies the principles of the DCP.

49 Insofar as Mr Lonsdale considers the application does not demonstrate sufficient compliance with these principles, he acknowledged that the transformation of the non-urban land to urban allotments will necessitate noticeable land forming and a significant change to the visual character of the area. Accordingly, the Court was taken to a number of viewing locations within and outside the site to assess the visual character. Mr Lonsdale explained his concerns and agreed that the most critical visual impacts were likely to be experienced from the adjoining "Bellevue Heights Estate". But he conceded that the proposed subdivision would allow further housing of a similar nature to the surrounding estates, and that its visual impact would be acceptable, within the context of the release area character. Of some importance, it was noted that proposed development will be sited below the surrounding ridgelines, so that the wider rural vegetative backdrop, outside the release area will be maintained.

50 Therefore I am satisfied to rely on the opinions of Mr Player and Mr Glazebrook, together with Mr Lonsdales agreement that the visual character of the area will be preserved to an acceptable standard, considering the inevitable character changes allowed by the planning controls for the implementation of the release area. Accordingly, I do not consider the application should be refused on this issue.

51 The other outstanding issue concerns the impact on the endangered species, Davidsons Plums (Davidsonia jersyana). A number of these plants were found on the site after detailed investigation by Mr B. O’Donovan, in locations likely to be disturbed by proposed subdivision works. Whilst he considered these plants could be translocated, Ms Pimm and Mr Warren agreed that generally in situ conservation was the preferred option.

52 However, after further conferencing, these environmental experts agreed that the subdivision could proceed, subject to conditions of consent requiring the provision and implementation of a satisfactory Davidson's Plum Management Plan. This plan is to conserve the full range of genetic variation encompassed in the plants proposed for removal, re-establish a self-sustaining population and establish appropriate habitat and/or approved habitat condition of translocation receptor sites.

53 The resolution of this issue also depends on a developer agreement which also includes periodical monitoring and provides for the applicant to lodge a sum of $250,000 to be held in trust for the ongoing maintenance of the Bushland Conservation Reserve.

54 I accept this agreed position reasonably addresses the issue raised in connection with the endangered species and can therefore be covered by the agreed conditions of consent.

Conclusions

55 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this proposed subdivision merits conditional consent. The principal issue concerns the impact on the visual character of the locality arising out of the amount of landforming necessary to convert this non-urban land to residential allotments, in accordance with the current planning controls.

56 Insofar as reference was made to a number of initial strategic studies, this resulted in the subject land being released for urban development on the basis that the predominant 2(c) Urban Expansion Zone allows lots with a minimum site area of 450 sq m. Consequently significant infrastructure work, such as safe access roads and drainage works are required to service these new residential allotments, so as to provide an acceptable level of residential amenity.

57 I note in Mr Knights statement, annexure B2 contains comments on a review of the land forming requirements. This review states that a slope analysis conducted in the undeveloped part of West Murwillubah urban release area indicated about 60% of this area has more than 20 % slope. The report states that if a 20% slope constraint was imposed, then the potential yield of currently 330 lots would be reduced to 30 lots. However no such maximum slope limitation controls have been adopted to limit development.

58 It therefore appears to me that some discretion and balancing is required, if the primary objective for the 2(c) urban expansion land in the LEP, which is to ensure its optimum utilisation consistent with environmental constraints, is to be achieved on the subject site. Accordingly, I am persuaded to accept Mr Player, and Mr Glazebrook's opinion that the relevant control in s 4.2.2 of DCP 16 is a performance-based control that allows exceedance of the 5m/10% rule, providing satisfactory justification is made.

59 I accept the detailed points made by Mr Findlater as partial justification, because the engineering design substantially complies with all council design controls and results in approximately 50% of the new lots having slopes less than 10% and 50% with slopes greater than 10%. The access to these lots is within acceptable limits and the proposed design minimises substantial high earthwork batters and retaining walls, as required by the controls and provides satisfactory transitions to adjoining properties.

60 Furthermore, I do not consider there was any compelling evidence presented, which indicated that the proposed landforming would have unacceptable impacts on the environment, natural watercourses, any riparian, public infrastructure or the overall amenity of the area. Detailed consideration was given to the impact of the landscape visual character and I am satisfied to rely on the planning expert's opinion that the visual impact of the proposal is acceptable and justified, within the context of the existing, adjoining subdivision developments and the character of the future urban release area.

61 Whilst I accept the evidence that there are other subdivision design options, which could achieve a higher degree of compliance with the numerical controls, it is likely they would result in a significant decrease in lot yield, which is not consistent with the population projections for this release area. Interestingly, the proposed subdivision achieves a density of 8 dwellings/ha, which is considerably lower than the projected 15 dwellings/ha. On this measure of the controls, I do not conclude that the landforming in this subdivision results in an overdevelopment of the site.

62 Furthermore, in exercising the discretion available within the DCP, I consider some weight should be given to the particular features of this site, which necessitates significant filling along and adjacent to Old Lismore Road, to address potential flooding problems identified by council. This area of filling covers approximately 5% of the surface area that does not comply with the 5m/10% rule. Its exclusion results in approximately 15.7% of the surface area exceeding this rule, which is consistent with the controls currently under review and comfortably within the previously accepted control of 8m/20%, supported by council officers.

63 For these reasons then, I am satisfied that the relevant controls in the LEP and DCP have been reasonably satisfied to grant conditional consent. I note that there has been considerable negotiation between the parties to resolve outstanding aspect of the conditions, resulting in the agreed conditions in Exhibit 14. As this final set of conditions has incorporated various matters raised during the hearing, including arrangements at the interface of various stages to minimise environmental disamenity, I accept that these agreed conditions are reasonable to be imposed on this development.

Court orders

1 The appeal is upheld.

2 Development consent is granted to DA04/1618 for the subdivision of 331 lots at 26 Old Lismore Road, Murwillumbah, subject to the conditions in Annexure A.

3 The exhibits may be returned except for Exhibits 3, 4, 7, 8, 9, 13, 14, C and E.

___________________

R Hussey
Commissioner of the Court
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