Paddison v Tweed Shire Council; Cotterill v Tweed Shire Council

[2015] NSWLEC 1036

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Paddison v Tweed Shire Council; Cotterill & Anor v Tweed Shire Council [2015] NSWLEC 1036

Hearing dates:

5 & 6 February 2015

Decision date:

05 March 2015

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeals dismissed

Catchwords:

Development Application: whether an underdevelopment of the site, multi dwelling housing, dual occupancy, whether objection to development standard well founded.

Legislation Cited:

Tweed City Centre Local Environmental Plan 2012; Standard Instrument—Principal Local Environmental Plan; Environmental Planning and Assessment Act 1979

Cases Cited:

Wehbe v Pittwater Council [2007] NSWLEC 827; Schaffer Corporation v Hawkesbury City Council (1992); BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399

Texts Cited:

Tweed Development Control Plan ; NSW Coastal Policy 1997; Far North Coast Regional Strategy 2006-2031; Tweed Heads Town Centre Masterplan; Tweed City Centre Vision 2011; Tweed Shire Urban Land Release Strategy

Category:

Principal judgment

Parties:

10519 of 2014
Craig Paddison (Applicant)
Tweed Shire Council (Respondent)

10520 of 2014
Lance and Wendy Cotterill (Applicants)
Tweed Shire Council (Respondent)

Representation:

Counsel: Mr S Nash (Respondent)

Solicitors: Mr A Gough
Storey & Gough (Applicant)

Ms S Kelly
KLA Piper (Respondent)

File Number(s):

10519 of 2014 and 10520 of 2014

Judgment

1. These are two development applications lodged with and refused by Tweed Shire Council that seek consent for residential development on two adjoining allotments. As the contentions in the cases are similar, the matters have travelled together and the parties agree that evidence in one is to be evidence in the other.

2. Matter No 10519 of 2014 relates to the Council’s refusal of Development Application DA13/0594 that proposed the construction of a dual occupancy (detached) development at No 40 Enid Street, Tweed Heads.

3. Matter No 10520 of 2014 relates to Council’s refusal of Development Application DA13/0591 that proposed the construction of a multi dwelling housing development at Nos 36-38 Enid Street, Tweed Heads.

The sites and the locality

4. The sites are located on the eastern side of Enid Street between Frances and Florence Streets. No 40 comprises Lot 24 Section 5 in DP 4043 and has a frontage of 15.088m, depth of 40.234m and site area of 594.4sqm.

5. Nos 36-38 comprise Lots 25 and 26 in the same deposited plan and have a combined frontage of 30.176m, depth of 40.234m and site area of 1188.8sqm.

6. All lots are currently vacant, generally flat, grassed and clear of vegetation.

7. Development to the immediate south of the site comprises a two and three storey residential flat building with single and two storey dwelling houses to the immediate east and north. The sites to the east that front Beryl Street are zoned for commercial use.

8. A mix of housing varying from single storey dwellings to three storey flats is located in proximity of the site with St Joseph’s Church and Primary School further to the north at the intersection of Enid and Frances Streets. A six and seven storey residential flat building is located on the south-eastern corner of that intersection.

9. The sites are located approximately 500m from the Tweed Heads shopping centre and Wharf Street retail precinct.

Background and the proposals

10. The appeals were lodged in July 2014 and have been the subject of conciliation and mediation before the Court. As the result of these processes, the applicant has been granted leave to rely on amended plans. Those plans attempt to address a number of the original contentions in the case that related to design issues. Further minor changes were made to the plans of the multi-unit development during the hearing (Version I).

11. DA 13/0594 proposes the construction of a detached dual occupancy development comprising 1 x 3 bedroom single storey dwelling house at the front of the site and 1 x 3 bedroom two storey dwelling house located at the rear. Each dwelling contains an attached garage accessed from a common driveway running along the southern boundary of the site. The private open space for the front dwelling is located between the dwelling and the street boundary with a larger courtyard provided at the rear of the site for the two storey dwelling.

12. DA 13/0591 proposes the construction of four buildings comprising 2 x 3 bedroom single storey villas and 2 x 2 storey, 4 bedroom townhouses each accessed off a central driveway. Centrally located attached double garages would be accessed off a common driveway that straddles the common boundary of the allotments. The private open space for the front dwellings is located forward of those dwellings with the rear of the site allocated to the townhouses.

The planning controls

13. The sites are zoned R3 Medium Density Residential under the provisions of Tweed City Centre Local Environmental Plan 2012 (LEP). The aims of the plan are found at clause 1.2 and are:

(a)  to give effect to the desired outcomes, strategic principles, policies and actions contained in the Council’s adopted strategic planning documents,

(b)  to promote employment, residential, recreational, arts, social, cultural and tourism opportunities in Tweed City Centre,

(c)  to encourage the responsible sustainable management and conservation of Tweed City Centre’s natural and environmentally sensitive areas, the built environment and cultural heritage,

(d)  to promote development that is consistent with the principles of ecologically sustainable development,

(e)  to promote the economic revitalisation of Tweed City Centre,

(f)  to strengthen Tweed City Centre as a multi functional and innovative regional centre that encourages employment and economic growth,

(g)  to protect and enhance the vitality, identity and diversity of Tweed City Centre,

(h)  to facilitate building design excellence appropriate to a regional city in Tweed City Centre.

14. Clause 2.3 (2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R3 zone are:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

15. Dual occupancy and multi dwelling housing are permitted with consent in the R3 zone.

16. Part 4 of the LEP contains Principal development standards and those relevant to the application are clauses 4.3 – Height of Buildings and 4.4 Floor Space Ratio (FSR). The clauses are in the following form:

4.3   Height of buildings

(1)  The objectives of this clause are as follows:

(a)  to establish the maximum height for which a building can be designed,

(b)  to ensure that building height relates to the land’s capability to provide and maintain an appropriate urban character and level of amenity,

(c)  to ensure that taller development is located in more structured urbanised areas that are serviced by urban support facilities,

(d)  to encourage greater population density in less car-dependant urban areas,

(e)  to enable a transition in building heights between urban areas comprised of different characteristics,

(f)  to limit the impact of the height of a building on the existing natural and built environment,

(g)  to prevent gross overshadowing impacts on the natural and built environment.

(2)  The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

4.4 Floor space ratio

(1)  The objectives of this clause are as follows:

(a)  to define the allowable development density of a site and for particular classes of development,

(b)  to enable an alignment of building scale with the size of a site,

(c)  to provide flexibility for high quality and innovative building design,

(d)  to limit the impact of new development on the existing and planned natural and built environment,

(e)  to encourage increased building height and site amalgamation at key locations in the area of Tweed City Centre.

(2)  The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map……..

17. The maximum height of building at the site is 34m and the maximum FSR is 3.25:1.

18. Clause 4.6 provides for exceptions to development standards.

19. Clause 6.6 is in the following form:

6.6   Minimum building street frontage

(1)  The objectives of this clause are as follows:

(a)  to ensure that, visually, buildings have an appropriate overall horizontal proportion compared to their vertical proportions,

(b)  to provide appropriate dimensions and spacing to ensure adequate privacy between any residential component and the adjoining land use,

(c)  to provide appropriate dimensions for the design of car parks levels and ensure access is reasonably spaced along roads and lanes,

(d)  to encourage larger development of commercial office, business, residential and mixed use buildings provided for under this Plan.

(2)  Development consent must not be granted to the erection of a building on land in Zone R3 Medium Density Residential, Zone B2 Local Centre, Zone B3 Commercial Core or Zone B4 Mixed Use that does not have at least one street frontage of 20 metres or more.

(3)  Despite subclause (2), the consent authority may grant development consent to the erection of a building on land referred to in that subclause if it is of the opinion that:

(a)  due to the physical constraints of the site or an adjoining site or sites, it is not possible for the building to be erected with at least one street frontage of 20 metres or more, and

(b)  the development is consistent with the aims and objectives of this Plan.

20. The site frontage for the dual occupancy development is 15.088m and does not satisfy the street frontage control. The parties agree that the control is a development standard and the applicant relies of a written objection to that standard pursuant to the provisions of clause 4.6 of the LEP.

21. Clause 6.10 requires consideration as to whether the proposed development exhibits design excellence and includes the following matters to which regard must be had:

(a)  whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)  whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c)  whether the development detrimentally impacts on view corridors,

(d)  the requirements of the Tweed City Centre DCP,

(e)  how the development addresses the following matters:

(i)  the suitability of the land for development,

(ii)  existing and proposed uses and use mix,

(iii)  heritage issues and streetscape constraints,

(iv)  the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)  bulk, massing and modulation of buildings,

(vi)  street frontage heights,

(vii)  solar access controls,

(viii)  environmental impacts such as sustainable design, overshadowing, wind and reflectivity,

(ix)  the achievement of the principles of ecologically sustainable development,

(x)  pedestrian, cycle, vehicular and service access, circulation and requirements,

(xi)  the impact on, and any proposed improvements to, the public domain.

22. Tweed Development Control Plan (DCP) applies to the sites with Section B2 – Tweed City Centre prevailing over any other section in the DCP in the event of an inconsistency. Part A provides general controls for dwelling houses, dual occupancy, secondary dwellings, alterations and additions and ancillary development with Part B relating to Town Houses and Row Houses, that section being applicable to the multi dwelling application.

23. Controls for setbacks (3.1), Passive Design (4.2), Solar Access and natural ventilation (4.3), Design Controls 2 – Site Configuration, 3 – Setbacks, 5 – Building Footprint and Attics, Orientation and Separation, 7 – Building Amenity are particularly relevant to the contentions in the case.

24. For multi dwelling housing, a maximum height of 9m and a maximum FSR of 0.8:1 is permitted. The development is compliant with both controls.

25. The site is within the “City Centre Support Precinct” of the DCP and to the west of Beryl Street. The Character Statement for the precinct is as follows:

The objective for future development in this precinct is to allow for a similar range of land uses to the City Centre Core although at a lower density and without the extent of active street front uses as in the City Centre Core.

Future development on consolidated allotments will be up to 10 storeys fronting Wharf Street and 14 fronting Pearl Street with residential land uses only to the west of Beryl Street and Boyd Street. The objective for future development west of Beryl Street and Boyd Street is to create a residential precinct with high quality urban design and buildings that respond to the topography of the land. Buildings up to 10 storeys will be encouraged along Thomson Street on consolidated sites to reinforce the ridgeline and define the State border. Some medium density buildings between Angela Street and Florence Street will function as an interface between City Centre Support Precinct and lower density Ridgeline and Razorback Precinct.

26. As the statement references the City Centre Core Precinct, it is relevant to understand the character statement for that precinct:

The City Centre Core Precinct is the ‘heart of the city’ and is well located to accommodate the bulk of future residential and business development necessary to fulfil the regional centre role of Tweed Heads while connecting with the existing urban form of Tweed Heads and Coolangatta.

The future character of the City Centre Core Precinct will be of a dynamic centre with a mix of land uses comprising retail uses at ground level activating the street frontage and podium levels comprising commercial offices topped by residential high rise buildings ranging from 10 to 14 storeys in height. The main two streets in the precinct are Bay Street and Wharf Street.

The visual and functional character of Bay Street and Wharf Street will be improved through enhancements to the public domain in the form of integrated planting, paving, lighting and street furniture schemes framed by high quality buildings. Streets will have continuous awnings to provide weather protection to pedestrian street activity.

27. Parts 7.5 of the DCP states that for multi dwelling housing the provisions of Section A1 and the DCP apply where that form of development is 3 storeys or less. Part 7.7 states that for dual occupancy development the DCP also applies in the Medium Density Residential Zone in the Tweed City Centre.

28. The strategic planning documents relevant to the aims of the plan are the NSW Coastal Policy 1997, Far North Coast Regional Strategy 2006-2031, Tweed Heads Town Centre Masterplan, Tweed City Centre Vision 2011 and Tweed Shire Urban Land Release Strategy.

The issues

29. The contentions in the cases are whether the developments are inconsistent with the vision and objectives contained in the LEP and the objectives of the R3 zone. In particular, the council contends that the proposed height of buildings and FSR is substantially less than that contemplated under the development standards and is therefore inconsistent with the objectives of those standards. In terms of built form the council contends the developments do not meet the relevant controls contained in Section A1, Parts A and B of the DCP and the site is not suitable for the proposed development or in the public interest. In addition, in relation to the dual occupancy application, the site does not meet the minimum frontage provision contained in the LEP.

The evidence

30. Expert town planning evidence was heard from Mr A Smith for the applicant and Ms J Kay for the council. They agree that the proposed buildings have a variable height of between 2.4m and 6.1m and, when viewed from Enid Street, will demonstrate three separate single storey buildings stepping up to three two storey buildings from the front boundary. The developments have a FSR of 0.55:1 (Nos 36-38) and 0.47:1 (No 40) and are therefore compliant with the development standards for building height and FSR. They also agree that in the case of the development application for No 40 the site, with a width of 15.088m, does not meet the 20m minimum street frontage control.

31. The applicant has prepared a written objection to the street frontage control and relies on the provisions of clause 4.6 of the LEP for an exception to that standard.

32. They disagree as to whether the development satisfies the objectives of the LEP and DCP and the strategic planning that underpins those documents. Ms Kay says the development is a significant underdevelopment of the two sites, being 27.9m below the nominated maximum height control and only 0.55:1 and 0.47:1 FSR when both could have a FSR of 3.25:1. The development does not go close in any shape or form to the sites’ potential to facilitate the orderly and economic use of the land given the identified opportunities and limited constraints. She says the strategic planning documents referred to at [28] provide a comprehensive yet flexible vision for the R3 zone and whilst the form of development proposed is permissible in that zone, they are not consistent with the objectives of the LEP specifically within the nominated City Centre support precinct. The mix of housing types permissible within the R3 zone reflects the extensive strategic planning that has been undertaken for the locality resulting in precincts that have nominated height and FSR controls, reflective of the ability of the land to cater for particular residential forms.

33. Mr Smith says the developments are numerically compliant with both development standards, the standards are upper limits and the form of development is permissible and also anticipated in the zone because of the reference in the Tweed City Centre of the DCP back to the controls for dual occupancy and multi dwelling housing in the general section of the DCP. He says that if it had been the council’s intention to establish a monoculture of high density, high rise development then it would have been more appropriate to select the R4 High Density Residential zone available under the Standard Instrument—Principal Local Environmental Plan. The aims of the zone are to provide for a variety of housing types in a medium density environment as opposed to a high density environment.

34. Ms Kay disagrees and says the R3 zone is appropriate, given the variety of medium density development envisioned for the zone and the range of height limits reflective of medium rather than high density. Far from being a monoculture of residential forms, the LEP and DCP provisions provide for a variety of housing types over the entire R3 zone, but also provide clear guidelines for development within particular precincts, formed through the LEP height and FSR provisions and supported by the DCP Section B2. The variety of housing types would be residential flat buildings of varying densities, heights, sizes and configurations reflective of the land’s capability to accommodate development types and the site’s distance from the city core. She says the deviations from the nominated height and FSR controls are contrary to the desired outcomes, strategic principles, policies and actions contained in the council’s adopted strategic planning documents. The sites have the potential to accommodate a density of approximately 60 residential units and the development, if approved, would prevent a total of up to 54 dwellings being constructed in the precinct. She says the Tweed Shire Urban Land Release Strategy (Strategy) provides typical dwelling yields for the proposed development types of 20-24 dwellings per hectare with the future vision of the subject precinct yielding 94-200 dwelling per hectare. The difference in dwelling yield is substantial and considered unacceptable in the circumstances.

30. Mr Smith disagrees with Ms Kay’s density calculations and cites a table from the Strategy which he says demonstrates that the R3 zone would average a density of 50-66 dwelling per hectare and achieve the population anticipated. He says the 94-200 dwelling density is for the mixed use zone rather than the medium density zone and concludes that the development proposals would intermingle with a range of other medium and higher density developments and meet the strategy outcomes with the lower densities radiating away for the main street.

31. Ms Kay says the proposals are contrary to the promotion of the economic revitalisation of the Tweed City Centre as each development will not positively contribute to the increase in population density for the city support precinct that is a recognised requirement of the city’s revitalisation plan. The underutilisation of these sites will have cumulative impacts in regards to the provision of accommodation for the predicted population increase of the Tweed by denying approximately 116 persons pedestrian access to the CBD and a reduced population that can generate the need for goods and services within that CBD. It will not strengthen the Tweed Heads city centre as a multi-functional and innovative regional centre that encourages employment and economic growth as both developments will not contribute to the increased population density promoted and envisioned by the various strategic and strategic and statutory documents applicable to Tweed Heads. The proposal will prejudice the ability of the city centre support precinct to provide sufficient additional housing for the predicted and promoted population increase and this underutilisation of land will in turn result in a lower population in the immediate vicinity of the city centre core.

32. Mr Smith disagrees and says the proposal is consistent with the medium density objectives of the zone and the intent established in the DCP, to provide for a medium density outcome albeit at lower densities than that envisaged within the Town Centre areas. He says that to develop all of the sites in the R3 zone to the densities suggested by Ms Kay would exceed the population growth targets identified in all of the planning documents.

33. The experts expressed similar opinions in relation to the contentions about building height and FSR.

34. The dual occupancy application relies on an exception to the frontage development standard, pursuant to the provisions of clause 4.6 of the LEP. Ms Kay says the proposal is inconsistent with the objectives of the standard as the site is not sufficient in width to provide satisfactory spacing between residential developments for visual and acoustic privacy. The site does not exhibit any physical constraints that prevent consolidation with adjoining sites to facilitate compliance with the standard. A more appropriate outcome could be achieved through consolidation of all three lots for the purposes of a higher density multi storey development.

35. Mr Smith says the site is physically constrained by circumstances pertaining to each of the adjoining properties, the site to the south consisting of an established low rise multi dwelling housing development that has a continued lifespan in the order of 15 to 20 years. Despite efforts made between the owners of 36-38 Enid Street and No 40, no agreement could be reached and therefore consolidation was not possible, resulting in a physical impediment to extend the frontage of the land. The scale and height of the proposal is largely consistent with the spatial separation requirements of the DCP, represents a medium density outcome and assists in provision of a variety of dwelling types whilst also demonstrating consistency with the existing built form environment in the locality.

36. Clause 6.10(2) of the LEP requires consideration of design excellence. Ms Kay says that the site, being flat, regular shaped and unencumbered by easements or restrictions provides no reasonable justification for designs that are simplistic and offer nothing innovative or interesting from a streetscape perspective. She says the developments are contrary to the items listed in clause 6.10(3) and the lack of design excellence is demonstrated by the non-conformities with the controls in the DCP, result in developments that will not provide good amenity for future residents and are not considered characteristic of a design that exhibits excellence. The proposals relate poorly to each other in terms of separation, setbacks, amenity and urban form with the dual occupancy’s relationship with the proposed multi dwelling housing poor due to the overshadowing that will occur to primary windows and living areas of the two dwellings. Each of the six dwelling do not meet the minimum rear setback and will be subjected to overshadowing during the winter months to living areas in both proposed dwellings of the dual occupancy. The adverse amenity impacts for future residents of the developments will be further accentuated by the redevelopment of surrounding sites with development that is consistent with, or close to, the maximum height limits and FSR.

37. Mr Smith says the proposals demonstrate an economical and affordable design that is consistent with the principles of modern design and satisfactorily contribute to the local streetscape in a positive manner. He says the dwelling are compliant with the context of clause 6.10 through the provision of modern, articulated facades, high levels of articulation, dwellings that satisfactorily address the street, provide sufficient sunlight access to each dwelling, result in no loss of views to surrounding residents, meet BASIX requirements and are consistent with the surrounding built form in terms of massing, scale and land use.

38. In terms of the controls contained in the DCP, the experts agree that the dual occupancy development does not comply with the rear setback control of 6m. Ms Day says the 5m setback will not provide sufficient building separation for building 2 for residential amenity, privacy and solar access and while this may not be an issue for the existing development pattern, it is reasonable to anticipate a significant transition in the locality in the future. As the sites to the east are zoned B3 Commercial Core, that development in certain circumstances can have a zero setback and could comprise multistorey commercial and residential development. The 6m setback is crucial to protect the future amenity of dwelling 2.

39. Mr Smith says that only the upper portion of the dwelling is required to be setback 6m and the ground floor component, with a setback of 5.154m exceeds the control. The area of variation does not result in any limitation to sunlight access on adjoining properties nor any overlooking or loss of privacy and sufficient landscape area is available.

40. In relation to the multi dwelling housing proposal, the deep soil zone depth is not met in relation to the rear boundary setback. Ms Kay says 7.242m is required and only 5m is proposed. Compliance with the control is crucial given the likely future development to the rear of the site and the need to provide sufficient separation for privacy and outdoor recreation. The objectives of the setback are to provide for vegetation and mature trees and an adequate area for private recreation and relaxation.

41. Mr Smith says that variation to the control is justified on the grounds that the proposal provides generous private outdoor recreation areas (129sqm) and sufficient space for mature trees to be established.

42. The experts disagree whether the proposal is compliant with side boundary setback controls. Ms Kay says a 4m setback is required to the northern boundary whereas only 1.525m is provided. This is because the wall contains the primary windows of the living room to Building 1. Mr Smith says the living room has windows oriented to the north and west and primary open space and that given the east west orientation of the site, the orientation of the primary living areas to the east and west respectively ensure greater privacy from development to the north that he says could be 1.5m from the side boundary.

43. Ms Kay concedes that when each control is considered in isolation, the extent of non-compliance would not be reason to refuse consent however, when taken as a whole the cumulative impact of that non-compliance results in poor amenity and impacts on the development potential of adjoining sites.

44. In relation to whether the sites are suitable for the developments proposed and those developments are in the public interest, Ms Kay says that they are not. She says they are inconsistent with the aims and objectives of the LEP regarding the amalgamation of sites to promote increased densities in this prime location, immediately adjacent to the commercial core. There are few areas that achieve the flood planning level, are not affected by aircraft noise, are in such close proximity to services and therefore, it is important to ensure the land is developed to accord to the council’s strategic intent, deliver increased population and revitalise the Tweed Centre. The development is not consistent with the DFC for the precinct and is contrary to the orderly and economic use of the land, being a significant underdevelopment of the sites.

45. Mr Smith says the developments are permissible in the zone and, apart from the site frontage control, are compliant with the relevant development standards and the objectives of the R3 zone. There are no adverse impacts upon adjoining properties and the developments are compliant with the objectives and strategic intent of the R3 zone in that they provide for a variety of dwelling types and will result in a positive contribution in respect of housing choice, economic investment and increased population in proximity to the commercial centre of Tweed Heads.

The clause 4.6 objection – Matter No 10519 of 2014

51. Determination of the objection to the site frontage development standard in Matter No 10519 of 2014 is a precondition to consent being granted. A written objection to the development standard has been prepared (Exhibit 8) and has been prepared following the tests detailed by Preston CJ, when considering similar provisions under State Environmental Planning Policy No 1, in Wehbe v Pittwater Council [2007] NSWLEC 827.

52. The grounds for objection are that the 20m standard is unreasonable in the circumstances of the case because the site has only one street frontage and the existing site boundary provides a physical constraint from achieving the standard. There is limited opportunity to consolidate the site with adjoining land to increase the lot frontage with an existing strata titled residential flat building adjoining the site to the south requiring loss of driveway area from that development. The objection states that attempts to pursue a joint development proposal with the owners of No 36-38 have been unsuccessful with a separate development application lodged for that land. This application is the subject of this appeal (Matter No10520 of 2014).

53. No evidence was presented to the Court that detailed attempts to consolidate the site with adjoining land.

54. The objection states that the standard is unnecessary in the circumstances of the case given that the bulk and scale of the dual occupancy is appropriate for the site, considering it is below the maximum height and floor space requirements and is consistent with the existing built form and character of the surrounding medium density residential environment, it does not result in any detrimental overshadowing, overlooking or privacy impacts on adjoining land, all required parking, open space and landscaped areas can be accommodated.

55. Consolidation with land to the north to achieve a street frontage of 20m would not result in a greater density and the development would contribute to housing availability and diversity in the local area.

56. The objection argues that there are sufficient environmental planning grounds to justify contravening the development standard having regard to the objectives of the zone. Dual occupancy is a form of development permitted in the zone contributing to the current and future housing choice and stock in the area. The proposed bulk and scale of the development provides a good level of amenity for future resident onsite and for adjoining properties.

57. Having regard to the objectives of the development standard, the objection states that the proposed building heights and width allow appropriate internal and external living spaces which achieve suitable sunlight exposure and privacy, as well as suitable private open space, car parking and access. The proposed buildings are proportional to the site and consistent with the character of the area. a dual occupancy development would be the maximum development potential for the site considering the size of the land and onsite bulk, scale, landscaping and access requirements.

Conclusion and findings

Matter No 10519 of 2014

58. Having regard to the objection to the development standard for site frontage, I have not been provided with any evidence that it is not possible to consolidate No 40 with Nos 36-38 other than statements includes in Mr Smith’s reports and the submissions of Mr Gough for the applicant. Mr Gough submits that amalgamation of the sites is not feasible due to the owner’s desire to construct a new multi dwelling housing development on the adjoining land.

59. The site is currently vacant land and adjoins two vacant allotments. Physically, there are no impediments to consolidating the three adjoining allotments or alternately, increasing the width of No 40 to 20m through a boundary adjustment. That would result in two allotments that would satisfy the minimum frontage requirement. In the absence of evidence in relation to the failure of negotiations to acquire a portion of the site, I am not satisfied that such a boundary adjustment could not be achieved and I do not accept that part of Mr Smith’s objection, in the absence of such evidence, that it is not possible to either consolidate the sites or implement a boundary adjustment to achieve the minimum frontage required.

60. It is therefore, firstly, necessary to explore whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

61. Secondly, there must be sufficient environmental planning grounds to justify contravening the development standard.

62. Thirdly, I must be satisfied the proposed development is in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 zone.

63. Finally, I must have regard to those matters that the Director-General must consider.

64. In accordance with the principles in Wehbe, a common way of establishing whether compliance with the development standard is unreasonable or unnecessary it to determine whether the objectives of the standards are met notwithstanding non-compliance with the standard, a similar but a lesser test to the third test in clause 4.6.

65. The objectives of the development standard are at [19]. I accept Mr Smith’s evidence that, visually, the dual occupancy buildings have an appropriate overall horizontal proportion compared to their vertical proportions. I am also satisfied that the site and the proposed design of the development thereon ensures adequate privacy between the dwellings and adjoining land uses. There is no evidence that the design of car parking and the levels are inappropriate or that the spacing or location of the proposed driveway is inappropriate.

66. I am not satisfied that the development encourages larger development of commercial office, business, residential or mixed use buildings as provided for under the LEP. Preston CJ at [43] in Wehbe states:

If the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose is served).

67. The last objective of the standard is to encourage larger development of….residential….buildings as provided for under the LEP (emphasis added), noting that the clause applies to a range of zones within the Tweed City Centre and within the R3 zone, residential development is the primary form of development to consider, consistent with the objectives of the zone. The LEP provides for larger forms of residential development, in the case of the site up to 34m in height with a FSR of up to 3.25:1. The dual occupancy development, with a maximum height of approximately 7.4m and FSR of 0.47:1, is not a building with the larger built form anticipated under the LEP. The aim of the clause is to encourage the provision of larger residential developments as provided for under the LEP. It is a descriptive provision, reflecting the result of the varying height and density controls anticipated in the LEP. Granting consent to development of the form proposed would not meet the aim of the clause as it would not encourage consolidation of allotments or facilitate larger forms of development.

68. The form of development proposed does not achieve the standard and, having regard to the objectives of the standard, there would be a proper purpose served in upholding the standard, that is, the delivery of a larger built form, consistent with that envisaged in the LEP.

69. The tests in clause 4.6 are cumulative. There must be sufficient environmental planning grounds that justify contravening the development standard. The written objection relies on the existing character of the area and the fact that dual occupancy development in permissible in the R3 zone and would contribute to the current and future housing choice and stock in the area through construction of a development of a bulk and scale that provides a good level of amenity for future residents on site and for adjoining properties. I am not satisfied that these built form outcomes are reasons to contravene a development standard. There is no regard to the planning intent of the standard or the DFC. The fact that the development is permissible in the zone is not sufficient environmental planning grounds to justify an exception to the standard.

70. The third test is that the proposed development is in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 zone. This is a higher test than the first. The development must be consistent with the objective of the development standard and the zone objectives. Pearlman CJ in Schaffer Corporation v Hawkesbury City Council (1992) considered the issue of consistency and said:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

71. I have discussed the objectives of the standard above and find that the proposal is consistent with the first three but can in no way be considered consistent with the objective of the fourth. To be consistent, it would need to deliver a larger scale residential development to that proposed. The form of development proposed would be antipathetic to the objective.

72. Having regard to the zone objectives, I am satisfied the proposed development would provide for the housing needs of the community and a variety of housing types within a medium density residential environment. For that reason, it would be consistent with the objectives of the R3 zone.

73. In consideration of the matters to which the Director General would have regard, I consider that, based on the strategic planning documents that underpin the LEP, matters of regional significance come into play. It is clear that the Tweed City Centre, of which the site forms a part, has been identified as accommodating high density development and employment opportunities. Ms Kay’s evidence is that there are few areas that are not physically constrained to deliver that development. For that reason, I do not consider that it would be appropriate to contravene the development standard in the circumstances of the case and that there is public benefit in maintaining the standard.

71. The provisions of clause 6.6(3) of the LEP provide for consent to be granted despite the land not meeting the minimum site frontage however, in view of my findings in relation to the clause 4.6 objection, I am not satisfied that either of the matters for consideration under the clause apply to the application. There are no physical constraints that prevent achievement of the 20m frontage and development as proposed would not be consistent with the aims and objectives of the LEP, in particular 1.2(a).

72. For these reasons, I am not satisfied that the objection to the development standard is well founded. Nor am I satisfied that the provisions of clause 6.6(3) would provide for consent to be granted. As a consequence, the development application cannot be approved. As upholding the clause 4.6 objection is a precondition which must be satisfied before the development can be approved on a merit consideration it is unnecessary for me to deal with those matters.

73. Accordingly, development consent should be refused.

Matter No 10520 of 2014

77. Determination of this matter requires consideration of those relevant matters under S79C of the Environmental Planning and Assessment Act 1979.

78. The multi dwelling housing development is a use that is permissible with consent in the R3 zone. It is also a use that would be consistent with the objectives of that zone in that it provides for the housing needs of the community and a variety of housing types within a medium density residential environment.

79. It is common ground that the development is compliant with the development standards for height and FSR. The site meets the minimum frontage standard.

80. The council contends that the development does not meet the desired future character for the locality as informed by the objectives of the LEP, the R3 zone and the FSR and height development standards. In particular, Mr Nash, for the council, submits that the housing needs of the community is that need identified in the strategic planning documents that recognise a critical need in the Tweed City Centre to meet the demand for population growth. Whilst I accept this proposition, I am not satisfied, on the basis of evidence before me that the development would thwart this objective. It will provide housing, albeit at a far lesser density than the maximum permitted on the site.

81. Multi dwelling housing is a use that is permitted with consent in the R3 zone. McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 states:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

82. The zoning of the site must be given weight and, on the basis of the evidence before, me, I am satisfied that there will be no unacceptable environmental impacts resulting from the proposed development. One of the aims of the R3 zone is to provide for a variety of housing types. I do not accept Ms Kay’s evidence that this can only be achieved through the construction of residential flat buildings of varying height that contain a mix of unit sizes. Similarly, I do accept that the amount of land within the Tweed City Centre is constrained by flood planning levels, aircraft noise and existing lower scale residential flat buildings that limit immediate opportunities for redevelopment to occur. There are however, a number of sites that are not so constrained with recent evidence of development consents being granted for development that seeks to optimise the FSR and height controls in the LEP. The site is similarly unconstrained.

83. The other matter of relevance in the LEP is that of design excellence. Consent must not be granted unless the Court is satisfied that the development exhibits design excellence having regard to those matters listed in the clause. Of particular relevance are whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, whether the form and external appearance of the development will improve the quality and amenity of the public domain, the requirements of the Tweed City Centre DCP are met and how the development addresses those matters in subclause 6.10(e).

84. Having regard to the evidence, I am satisfied that the requirements of clause 6.10 are met. I prefer Mr Smith’s evidence that the design is one of modern articulated facades which combine a mix of materials, address the street and will be consistent with the streetscape without adversely impacting the quality and amenity of the public domain.

85. The provisions of the Tweed City Centre DCP are not relevant to multi dwelling housing and therefore, this matter must be satisfied. In relation to those matters in subclause 6.10(e), the land is suitable for residential development in design terms, being a use identified in the LEP as appropriate within the R3 zone. There are no heritage issues or streetscape constraints.

86. Having found that consent should not be granted to the dual occupancy development at No 40 Enid Street, there are no issues in terms of separation, setbacks, amenity and urban form to existing development and there are no other developments proposed on neighbouring sites. The bulk, massing and modulation of buildings are appropriate for the type of development proposed. Each dwelling will received the required amount of solar access to living areas and private open space despite non-compliance with the 4m setback control for sites with a northern boundary with adequate natural ventilation. The street frontage heights are not uncharacteristic with the mix of uses in the vicinity of the site however will not reflect the DFC.

87. There is no evidence of adverse environmental impacts. The council has no contentions in relation to the achievement of the principles of ecologically sustainable development, nor pedestrian, cycle, vehicular and service access, circulation and requirements or impacts on, and any proposed improvements to, the public domain.

88. There are two provisions of the DCP that are not met in terms of numerical compliance, those being the dimensions of the deep soil zone (Design Control 2) and the failure to setback the living room windows 4m from the northern boundary (Design Control 7). The council also argues the primary windows to living rooms in proposed dwelling 1 should be setback 4m however I do not accept this argument, as the DCP provides the following definition: primary windows and doors are those that give the rooms its outlook, light and air. The living room to that dwelling contains both north and west facing windows or doors. I consider the western door provides the outlook from that room with all windows and doors contributing light and air to that space.

89. Having regard to the evidence and the objectives of the two controls, I do not consider that the non-compliance with the two controls would be sufficient grounds to refuse consent. This is consistent with Ms Kay’s evidence.

90. I must also have regard to the likely impacts of that development, including environmental impacts on both the natural and built environments, social and economic impacts in the locality, the suitability of the site for the development and the public interest.

91. Having found that consent should not be granted to the development of No 40 Enid Street, approval of the development would isolate that site from any future development unless it could be consolidated with adjoining land. That land would need to be in Enid Street to ensure that the 20m frontage could be achieved. Due to the location of a residential flat building to the immediate south of that site, the most appropriate land with which that consolidation should occur is the site, Nos 36-38 Enid Street. There is no evidence that this could not occur. For that reason, I consider that approval of the application would prevent consolidation of the land occurring and would have an adverse economic impact on the adjoining land. I therefore conclude that the site is not suitable for the proposed development as it does not provide for orderly and economic use of the land. That must be achieved through the consolidation of the three allotments. For that reason, approval of the application would not be in the public interest.

92. The Orders of the Court are:

1. In Matter No. 10519 of 2014

1. The appeal is dismissed.

2. Development Application DA13/0594 for the construction of a dual occupancy (detached) development at No 40 Enid Street, Tweed Heads is refused consent.

3. The exhibits, other than exhibits A, C and 4, are returned.

2. In Matter No. 10520 of 2014

1. The appeal is dismissed.

2. Development Application DA13/0591 for the construction of a multi dwelling housing development at Nos 36-38 Enid Street, Tweed Heads is refused consent.

3. The exhibits, other than exhibits B, D and 5, are returned.

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Sue Morris

Commissioner of the Court

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Amendments

06 March 2015 - Minor spelling mistake

Decision last updated: 06 March 2015