Planit Consulting v Tweed Shire Council

[2009] NSWLEC 1383

Land and Environment Court

of New South Wales

CITATION:	Planit Consulting v Tweed Shire Council [2009] NSWLEC 1383
PARTIES:	APPLICANT Planit Consulting RESPONDENT Tweed Shire Council
FILE NUMBER(S):	11245 of 2008
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy Seniors Living Tweed Shire Development Control Plan 2008 Tweed Local Environmental Plan 2000
CASES CITED:	Ali v Liverpool City Council [2009] NSWLEC 1327 Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180 Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 219 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
DATES OF HEARING:	15 and 16 October and 6 November 2009
DATE OF JUDGMENT:	25 November 2009
LEGAL REPRESENTATIVES:	APPLICANT Dr S Berverling, barrister INSTRUCTED BY Hunt & Hunt RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

25 November 2009

08/11245 Planit Consulting v Tweed Shire Council

JUDGMENT

1 SENIOR COMMISSIONER: Hastings Point is a coastal settlement on the far North Coast. In common with many other coastal settlements, the estuary of a creek discharging into the ocean divides the built-up area. The settlement has distinct boundaries with sections of stunted coastal forest separating it from the nearest adjacent settlements to the north and to the south. The main road, Tweed Coast Road, runs north-south behind the coastal dunes through Hastings Point. Hastings Point is a little over 3 km long.

2 At the northern entrance to Hastings Point, a caravan park and a bulky three-storey resort of undistinguished design are located on the western side of Tweed Coast Road. In the northern portion of Hastings Point, that which is on the northern side of Hastings Point Bridge (the bridge) across Cudgera Creek (the creek), there is residential development on the coastal dunes including some buildings that are three storeys high. On the opposite side of Tweed Coast Road, in this northern portion, with the exception of the tourism related (resort) building, the character appears to be single and two-storey dwellings of an eclectic architectural mix and the wide range of ages (from 1950s fibro beach cottages to more contemporary styles).

3 As was observed during the course of the site inspection, the housing down the major side street to the north of the creek was of a similar character (although, on the south-western corner of the intersection of this street [Creek Street] and Tweed Coast Road, is located a medium density development in a number of separate buildings each one of which had a two-storey form).

4 Crossing the bridge across the estuary of the creek – a distinct spatial separation of several hundred metres – one enters the southern portion of Hastings Point. To the right is a large caravan park. Opposite the caravan park, in the elbow of the creek as it turns from the bridge toward the sea to run parallel to the coast for 200 m or so before its mouth, is nestled in a narrow public picnic ground with parking off Tweed Coast Road. Immediately beyond the picnic ground, a road to the east climbs the gentle frontal dunes to the top of the headland from which a view of the mouth of the creek and expansive coastal views along the beaches to the north and to the south are to be had from a lookout parking area.

5 To the south of the headland access road turnoff, the coastal dune areas behind the beach are devoid of development save for walking tracks to the beach. Opposite the entrance to the headland access road, on the western side of Tweed Coast Road, is located the community's general store and post office, a two-storey structure that is prominently visible at the end of the straight of Tweed Coast Road from the bridge and creek crossing. Because of the path of Tweed Coast Road travelling further south following the rear of the coastal dunes, immediately behind the two-storey form of the general store, the view is shared by the gable-end of another two-storey dwelling, a dwelling which is, in fact, some hundreds of metres to the south and beyond the corner of Young Street and Tweed Coast Road.

6 As one continues along Tweed Coast Road to the south within Hastings Point, the presentation of the dwellings to this main thoroughfare linking the various coastal settlements is that of one and two-storey dwellings of the same eclectic appearance as the mix of the one and two-storey dwellings to the north of the creek. It is not until one exits Hastings Point, travelling south, that one passes the major new development in the settlement. This is a three-storey development known as The Point that was approved pursuant to State Environmental Planning Policy Seniors Living (SEPP SL) for some 250 dwellings to be constructed in a number of stages. This development forms the southern residential boundary of the Hastings Point settlement. The only built elements beyond the SEPP SL development are a Shell service station and what appears to be some form of brick public utility building (such as a water or sewerage pumping station).

7 A little to the north of the SEPP SL development, although not yet commenced, Tweed Shire Council (the council) has approved a three-storey development proposed to contain 20 units and, also a little further to the north, another three-storey development to contain seven units. This development has also not been commenced. These approvals pre-date the adoption of the present applicable controls.

The proposal

8 The proposed development is to be a part one, part two and part three-storey development containing five dwellings.

9 The development is proposed to be located on the comer of Tweed Coast Road and Young Street (the site) with frontages to both roads. The site is a rectangular allotment with an area of 1315 sq m. The site is located on the creek some 400m upstream from the bridge.

10 Vehicle access to the site is proposed from Young Street. The site’s rear (western) boundary is, in part, within the waterway of the creek. The site is largely cleared and levelled as a consequence of an earlier approval (subsequently set aside by the Court – as discussed later).

11 As Tweed Coast Road runs south from the general store, the road follows the rear of the frontal dunes, turning slightly to the east before rounding a gentle bend slightly to the west. In the middle of the centre of this bend, Young Street joins Tweed Coast Road from the right. Tweed Coast Road also rises, gently, from north to south whilst rounding this bend and Young Street slopes down to the west or north-west from its intersection with Tweed Coast Road.

12 The consequence of these road alignments and levels is that the site is sheltered from significant viewing when travelling northwards along Tweed Coast Road as a consequence of the curve and slope of this road and the dwellings fronting it on each of the two allotments adjacent to the south of the site (as those dwellings are set well forward and close to the road).

13 However, when travelling to the south, the same combination of factors concerning the orientation and slope of the roads mean that any development on the site will be highly visible from Tweed Coast Road not merely in its orientation to Tweed Coast Road but also along a significant portion (if not the whole of the length) of its presentation to Young Street.

The site inspection

14 The site inspection commenced within a short walk around the site including obtaining an understanding of the boundaries of the site to the west where, because of erosion over the years, the south-western corner of the site is now some distance into the creek (whilst the north-western corner appears to be on the bank of the creek). The relevance of the location of the western boundary of the site arises as a consequence of the fact that proposed retaining wall works along the bank of the creek may fall partly within Crown land and, as a consequence, owner’s consent from the Lands Department would appear necessary if development approval were to be given to the proposal. If the proposal were to be otherwise acceptable, I agreed that it would be appropriate to permit a modest degree of time to the applicant to obtain the owners consent of the Lands Department so that development consent could be issued. However, given the conclusion that I have reached in the proceedings, this is not necessary.

Resident evidence

15 At the conclusion of the walk around the site, I heard informal evidence from six local residents. Four of them were opposed to the proposal and two of them supported it. Notes of this evidence were taken and subsequently tendered. Although there were a range of matters put in opposition to the proposal, the primary ones related to the character that the objecting residents perceived existed in (and was desirable for) Hastings Point and the fact that controls for Hastings Point to give effect to this, derived from a community consultation process, were included by the council in the Tweed Shire Development Control Plan 2008 (the DCP). The objectors also explained their concerns about the prominence of the site when viewed travelling in a southerly direction on Tweed Coast Road and what they considered to be the unacceptable extent of visibility and prominence of the proposed development on the site when viewed from this perspective.

16 Those who spoke in opposition to the proposal did so in a co-ordinated fashion and had a number of pages of signatures that specifically authorised each of them to speak on behalf of those persons who had signed the document. As a consequence, I do not propose to discuss, individually, their specific evidence and I treat what was said as a global body of evidence given on behalf of all those who authorised them to say it. However, I note, as I recently said in Ali v Liverpool City Council [2009] NSWLEC 1327 at (18):

It is, however, trite to say that if something is true, it is made no more true by being expressed by a large number of people saying it than if it is expressed by an individual. Further, the self-evident corollary of this is that if something has no validity as an objection, the fact that 1000 people may repeat the objection does not make it right – it remains invalid.

17 Although issues concerning the long-term population impact on the creek and its estuary were also raised by the objectors (including reference to a draft report on the health of the waterway that had been completed, during the week of the hearing, for public release and comment – but had not been so released), there is no evidence that this proposed development, if it were to be approved subject to appropriate conditions during construction and on an ongoing basis, would itself have an adverse impact on this waterway. To the limited extent that any increase in population on this site would potentially increase the overall degrading pressures of this community on this waterway, I am satisfied that this would be negligible in comparison to the seasonal increases in population that would necessarily arise as a consequence of holiday visitors during the tourist season.

18 The two residents who spoke in support of the proposed development did so from slightly differing but generally similar perspectives. The first of them to give evidence was the proprietor of the local general store and Australia Post franchise – he is also the holder of the not yet commenced development consent for 20 residential units, a three-storey block, toward the southern outskirts of Hastings Point. His evidence was given on the basis that the economic viability of his business, including retention of the Australia Post franchise, was dependent on population growth and the attendant economic growth arising from it and this was desirable for retaining services for the local community. Although he appreciated the existing character of Hastings Point, he considered that it was inevitable (and desirable) that this would change as older houses were either replaced or renovated. He did not consider that the present proposal specifically – and three-storey development, in general – was incompatible with what he saw as the desired future character of Hastings Point.

19 The second resident in support of the proposal, who lives in Young Street in the vicinity of the site, did not have the same economic interests as the proprietor of the store but concurred with the views that he expressed concerning the present and future character of Hastings Point – including the acceptability of three-storey development.

20 The Tweed Local Environmental Plan 2000 (the LEP) contains height limits that are applicable to the site. These are contained in a Height of Buildings map imported into the LEP by cl 16(2) which is in the following terms:

Consent must not be granted to the erection of a building which exceeds the maximum height or number of storeys indicated on the Height of Buildings map in respect of the land to which the application relates.

21 The Height of Buildings map shows that the LEP height control for the site is three storeys. As a consequence, the proposal is permissible pursuant to the LEP. However, it requires more detailed consideration in light of the more restrictive controls applying, pursuant to the DCP, specifically to the Hastings Pointed locality.

22 There are a number of specific controls on the DCP that are breached by this proposal. They comprise a height control and a storey control as well as a control on the number of dwellings permitted on any allotment. The height control sets a maximum height of 8 m and that which is proposed has a maximum height of 10 m; buildings are limited to 2 storeys and this proposed development is part one, part two and part three-storeys; and the DCP permits a maximum of two dwellings per allotment where as this proposal seeks five dwellings on this allotment.

23 The two issues arising from these breaches are:

First, is it appropriate to permit this proposal whilst long-term controls for development for Hastings Point are being developed where the proposal breaches the present interim controls (the prematurity issue)? and

If it is not premature to consider a proposal that breaches the present interim controls, is this non-compliant proposal acceptable despite those controls (the merit issue)?

24 Although some evidence was given by Ms Galle and Mr Shiels, the expert planners for the council and the applicant respectively, about the possible maximum yield from the site if it were to be subdivided into a number of smaller allotments, a process which would be permissible under the LEP, given the conclusions I have reached about the inappropriateness giving any approval contrary to the provisions of the DCP whilst the review process is being undertaken, I need not deal with this aspect further.

The community consultation process and reports

25 It is pertinent to consider the history of how the controls came to be incorporated in the provisions of the DCP. Also pertinent, in this regard, is the history of development approval for this allotment.

26 In 2007, the council granted development consent to two developments in the southern portion of Hastings Point – these becoming the cause of a deal of controversy in the local community. The first of them, at the southern end of Hastings Point, is The Point development pursuant to SEPP SL earlier described. The Hastings Point Progress Association unsuccessfully challenged the development consent for this project in the Court (see the decision of Pain J in Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 180).

27 The second was a development consent granted for this site for a seven unit development. The Hastings Point Progress Association successfully challenged the development consent for this project in the Court (see decision cited above and the decision of Pain J in Hastings Point Progress Association Inc v Tweed Shire Council and Anor; Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008] NSWLEC 219).

28 These proceedings are an appeal against refusal by the council, after a further assessment, of Development Application DA07/0022 – being the development application founding the development consent set aside by Pain J.

29 However, that challenge had not been determined at the time of commencement of the process leading to Hastings Point-specific controls (leading to the present controls) being inserted in the DCP.

30 Indeed, the granting of these two development consents, initially, by the council provided the genesis for initiating the public consultation process leading to the changes in the DCP.

31 That process commenced in 2007. There is no doubt that this process commenced in response to the two development consents described above. However, as those two development consents were in force at the time the public consultation process commenced, it could not be said that this process was commenced with a view to defeating the approval of this development proposal in the sense discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at paras (87) to (91). The process was described as being purely directed at future development control for, initially, the southern portion of Hastings Point and the derived controls were extended, by subsequent modification by council resolution, to the whole of Hastings Point.

32 To undertake this process, in August 2007, the council commissioned a consultancy, Ruker & Associates, to undertake a community consultation process and provide a report recommending a strategic framework of what controls should be applied. Ruker & Associates undertook a two-stage community consultation process and in March and April 2008, provided two versions of a report to the council. The April 2008 report was a revised version of the March 2008 report (the circumstances of the second report being provided is a matter to which I will return). However, I do note that the DCP states that the first objective of the Hastings Point-specific controls as being:

To implement the recommendations of the Hastings Point ‘Review of Height, FSR and Setback Controls’ Report, prepared by Ruker and Associates dated 26 March 2008 [emphasis added] , as resolved by Council on 22 April 2008.

33 A number of portions of the March Ruker & Associates report are relevant to these proceedings. These extracts are reproduced below.

34 Under the heading Regional and Local Context, the March report says:

In order to ensure that design excellence; both a Locality Plan (a structure plan) that includes place specific building and site design controls, must be developed prior to any medium density approvals to ensure long term public and environmental good is balanced with economic returns on land redevelopment. Such plans are required to be developed and administered by council with input and consultation from the community and stakeholders.
In the event that a Locality Plan that includes site and building design guidelines is not undertaken then medium density building types are not appropriate building forms for Hastings Point.

35 The recommendation, relevant to these proceedings, from this section of the report, are in the following terms:

5. Building and site design guidelines specific to Hastings Point need to be developed as part of the Locality Plan.

6. A settlement wide Locality Plan and place specific site and building design guidelines must be completed prior to any new medium density developments being considered.

36 Under the heading Immediate Context, the March report says:

Given the visual sensitivity of the settlement and the impact each lot has on the whole of the study area it is injudicious to encourage medium density building types without the certainty of carefully considered urban design site and building design controls and a Locality Plan.

37 The relevant recommendation that flowed from this is in the following terms:

2. Medium density building types are suitable for Hastings Point subject to urban design site and building design coal controls and a Locality Plan however without these strategic plans medium density is not suitable for Hastings Point.

38 Dealing with the topic of Built types, height, FSR and Setbacks, the March report recommended:

Residential Flat Buildings are not an appropriate building type for Hastings Point unless they are governed by a building type that details a small flat building of reduced height (max. 2 storeys plus a half level on the third storey) and reduced bulk (in relation of the controls set out in the draft DCP); maximum around 0.8:1 (to be tested) that are coming by detailed urban design, architectural and landscape site and building design guidelines specifically to define the built and landscaped character of Hastings Point.

39 Arising out of this process, the council adopted an initial set of controls for Hastings Point and, subsequently, on several occasions, modified those controls. Each of the steps in the process for the insertion or modification of those controls being incorporated into the DCP was accompanied by the appropriate advertising, opportunity for public submissions and council adoption process.

40 The present Hastings Point-specific provisions of the DCP are in the following terms:

AREA SPECIFIC DEVELOPMENT CONTROLS

INTRODUCTION

This section of the Plan provides development provisions that have been formulated in response to an identified specific need of a particular site(s) or locality. This section is to prevail to the extent of inconsistency with any other development provision in this Plan.

Area of Application

Hastings Point – all land within the boundaries of the locality of Hastings Point.

Objectives

· To implement the recommendations of the Hastings Point ‘Review of Height, FSR and Setback Controls’ Report, prepared by Ruker and Associates dated 26 March 2008, as resolved by Council on 22 April 2008.

· To limit the impact of new development on the existing character and amenity of this coastal settlement prior to any further locality based planning by:

o Implementing interim restricting height and density provisions for new development until provisions appropriately tailored to larger and more dense development (where appropriate) is adopted following community consultation, that will;

o Provide greater certainty to the protection and preservation of the areas natural and built environment.

Controls

(a) The maximum building height is 2-storeys and 8 metres.

(b) The maximum density on any lot or combination of lots comprising a development site is two dwellings (dual occupancy).

Review Period

The review period for interim development controls outlined above for Hastings Point is 12 months from the adoption of this Plan, except where a locality or structure plan, or area specific planning controls are in preparation in which case it will be the adoption date of that body of work and the concurrent or subsequent repeal of the interim provisions.

The interim development controls relating to the Hastings Point locality shall take effect on the giving of public notice of the Council’s adoption of the amended Tweed Shire Development Control Plan in accordance with clauses 21 & 22 of the Environmental Planning and Assessment Regulation 2000. There is no saving provision in respect of the area specific development controls herein above.

41 I do not consider it necessary to set out in full the details of the sequence of variation of these controls commencing with the initial controls and culminating with those controls that currently applying to the site except to say that the various changes have not practically altered the first control – it being the relevant criterion I consider applicable to any merit consideration of the proposal.

42 The two reports from Ruker & Associates were, originally, put in evidence without any explanation as to how the differences between the March and April versions had arisen. Because there were differences in emphases on relevant matters and because the initial hearing in Murwillumbah did not proceed to finality (thus requiring an additional hearing in Sydney), it was possible to obtain and put in evidence e-mail correspondence between the council and Ruker & Associates concerning the March draft and the changes that were made to it.

43 That additional material made it clear that, although the original version was provided by Ruker & Associates and based on the community consultation process undertaken by them, the changes that were made between the first version and the second version were driven entirely by a member of the council's strategic planning staff. Whilst this might be a perfectly proper exercise of his professional responsibilities, I do not consider that the changes that he initiated can properly be considered for the purposes of me being satisfied that the contents of the April report represented the outcome of a community consultation process upon which I could found a conclusion that meets the considerations discussed by McClellan CJ in Stockland.

44 However, for reasons which follow, I do not consider that setting aside the terms of the April document provides any assistance to the applicant in the proceedings as the critical provisions that underpinned the storey limit are derived from the March report and were carried, without significant or relevant change, into the April report.

45 The portions of the April Ruker & Associates report (comparable to the relevant portions of the March Ruker & Associates report) are in the following terms:

46 Under the heading Regional and Local Context, the April report says:

In order to ensure design excellence; both a Locality Plan (a structure plan) that includes place specific building and site design controls need to be developed prior to any 3-storey and/or medium density (multi-dwelling housing) development (comprising three or more dwellings) being approved so as to ensure long term public and environmental good is balanced with economic returns on land redevelopment. Such plans are required to be developed and administered by council with input and consultation from the community and stakeholders.

In the event that a Locality Plan that includes site in building design guidelines is not undertaken then the building types referred to above are not appropriate building forms for Hastings Point particularly with regard for the study area.

47 The relevant recommendations which flowed in this section are in the following terms:

4. Design and implementation of a settlement wide urban design Structure Plan (Locality Plan) would need to be developed if there is to achieve its development potential without compromising the character of a small village. These plans must be developed by Tweed Shire Council holistically rather than by individual landholders or on a site by site basis.

5. Any locality based plan would need to include building and site design guidelines specific Hastings Point.

6. Site and building design guidelines need to be developed prior to any approval for multi-dwelling housing comprising 3 or more storeys and/or 3 or more dwellings.

48 Under the heading Immediate Context, the relevant comparable paragraph is in the following terms:

Given the visual sensitivity of the settlement and the impact each lot has on the whole of the study area it is injudicious to encourage multi-dwelling building types without the certainty of a carefully considered urban design site and building design controls located within a Locality Plan.

49 The relevant recommendations arising out of this section of the April report was in the following terms:

Multi-dwelling building types would only be suitable for Hastings Point subject to urban design site and building design controls which would be situated within a Locality Plan. Without these strategic measures multi-dwelling housing comprising 3 or more storeys and/or 3 or more dwellings are not suitable for Hastings Point.

50 Under the heading Built types, height, FSR and Setbacks, the April report, relevantly, says:

To ensure appropriate building and site design all building types must be accompanied by urban design, architectural and landscaped site and building design guidelines specific to Hastings Point.

Where such design exploration is not undertaken and in the absence of urban design, architectural and landscape design guidelines Residential Flat Buildings are not an appropriate building type for Hastings Point.

51 The relevant recommendation from this section of the April report is in the following terms:

Residential Flat Building are not on appropriate building type for Hastings Point unless they are governed by a building type that details a small flat building of reduced height. The draft RTDC provides a suite of controls that achieve good urban design outcomes; however, they are generic controls and in the context of such a sensitive location development of this scale can only be adequately covered where there are controls specific to that locality. Two new building types should be investigated; a smaller RFB comprising 2 storeys and a 3 storey RFB where the third level occupies only half of the third level.

52 Comparing the various relevant elements of the March and April versions of the Ruker & Associates report quoted above, it is clear that, although there are some shifts in emphasis between the two versions, the general overall flavour of the March document (which comprises entirely work undertaken by Ruker & Associates) is largely replicated after the intervention by the council's strategic planning staff member.

53 In addition, although the work by Ruker & Associates provides the starting point for the subsequent processes, those processes in the evolution of the DCP controls went through the proper council staff and council processes as well as the public advertising process. As a consequence, I do not consider that there is any improper or unsatisfactory process basis for not having regard to the specific Hastings Point locality controls contained in the DCP.

Prematurity

54 Mr Shiels’ evidence was marked by containing two quite distinct elements. The first related to his opinion that it was inappropriate to apply the controls to this site and, second, that as a general proposition, the controls were inappropriate. For me to express any views on the second element of his evidence, that is on his general proposition about the appropriateness of those of the controls presently in the DCP, would be contrary that the decision of the Court of Appeal in the recent case of Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226. I therefore do not propose to do so.

55 The process that Ruker & Associates has undertaken has resulted in a further consultancy being given to Ruker & Associates in January 2009 to develop a long-term strategic planning framework for the Hastings Point locality. It is quite clear from the reports and the subsequent council processes, that those controls arising from the original Ruker & Associates reports were intended to be of an interim nature pending the development of a long-term framework specifically for this locality.

56 Ruker & Associates have undertaken that further work and have recently provided the council with a further report (presumably recommending some long-term development control framework for Hastings Point). That report is to be considered by council officers who are to analyse it and prepare information for the council. This new Ruker & Associates’ report is not publicly available and it has not been tendered in these proceedings. The applicant has not sought an adjournment of these proceedings to enable council's processes to be undertaken and it is reasonable to assume that, in timing terms, any further decisions by the council concerning planning controls for Hastings Point are unlikely to be finalised until some time in the first half of 2010, at the earliest. It is not appropriate for me to make any assumptions, of any nature, about what might be included and what changes (if any) might be made to the present controls for Hastings Point arising from that process.

57 As to the consideration I should give to the DCP, Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

58 Although I have chosen, for the reasons set out earlier, to disregard the April version of the Ruker & Associates report, for the reasons set out I do not consider that this has undermined, in any way, the starting point for a valid development control plan amendment preparation process. It is clear that the council has embarked upon a structured and considered exercise in determining what should be the long-term planning controls applicable for future redevelopment of Hastings Point. It is also clear that, since the commencement of this process, the council has not made any planning decisions that are antithetical to the interim controls (founded on the March 2008 report by Ruker & Associates and as have evolved during this further period pending consideration of a second stage and final report from Ruker & Associates)_.

59 If I were to approve this proposal, prior to finalisation of the council's systematic process, I would, in my view, effectively be pre-empting and, possibly, seriously damaging that process – particularly if controls, on a permanent basis, were adopted which replicated the interim controls. To do so would, in my view, be entirely contrary to the approach determined to be appropriate by the Court of Appeal in Zhang. I do not propose to do so and so pre-empt the council's planning process.

Merit of the present design

60 Although I have reached the conclusion it would be inappropriate to intervene for the reasons set out immediately above, if I am wrong on this point, I am also satisfied that, within the terms of the present controls, it would not be appropriate, on any merit basis, to set aside the height and storey limits. I do not need to deal with this aspect at length. As I have earlier described it, the site is significantly visually prominent when viewed travelling south on Tweed Coast Road after crossing the bridge over the creek and passing the general store. The height and presentation of this non-compliant proposal would be, in my assessment, significantly intrusive in that context and it is inappropriate for this reason in light of the present interim controls.

The NSW Coastal Design Guidelines

61 During the course of submissions, a deal of discussion took place about whether or not Hastings Point should be regarded as a “coastal village” or as a “coastal hamlet” for the purposes of the State government’s Coastal Design Guidelines. The reason for this was that the guidelines offer different descriptors of appropriate height limits for such different styles of settlement. In the final analysis, I do not believe that there is a relevant significant difference between them. This conclusion does not assist the applicant in these proceedings.

62 The relevant portion of the policy document relating to the desirable height of development in coastal villages is in the following terms:

6. Height

a. The village centre and the main street have a maximum of up to three storeys.

b. Some elements of important public buildings within the centre may be marginally higher than surrounding buildings.

c. Residential buildings surrounding the centre have a maximum of two storeys.

63 On the other hand, the comparable provision for a coastal hamlet is in the following terms:

6. Height

a. Heights of up to two storeys are maintained throughout the settlement.

64 To the extent that there is a difference between them that is potentially relevant, it turns on the question of where, if the Hastings Point locality were to be regarded as a coastal village, the “village centre and the main street” of that village would be located.

65 To consider how this should be assessed in the Hastings Point locality, it is necessary to provide a modestly expanded description of the Hastings Point locality.

66 First, with the exception of a small number of comparatively minor side streets, development in Hastings Point is ribbon development along Tweed Coast Road, the major north/south coastal road. To the limited extent that there is commercial development in Hastings Point, it is confined to the two caravan parks; the resort development in the vicinity of the caravan park to the north of the creek (this development may be associated with this caravan park – a matter of which I am uninformed and bears no relevance in these proceedings); any internal commercial activity within the caravan park south of the creek; and the Hastings Point general store and post office immediately adjacent to the southern caravan park. Two petrol stations, one at the southern extremity of Hastings Point and the other near its northern extremity, complete such commercial activity as exists within the locality.

67 As earlier noted, the site is to the south of the general store and post office. This building has the low scaled elements of the caravan park to the north towards the bridge over the creek and has the low scale residential development fronting Tweed Coast Road between it and Young St.

68 The site is separated from that commercial facility not only by Young Street but also by five conventional residences on conventional allotments (as seen during the course of the site inspection and from the aerial photograph and the zoning map in evidence). In reality, I am satisfied, Hastings Point has, for the purposes of the coastal design guidelines, no functional “village centre and the main street” to which the three-storey element of the coastal village provisions could be applied.

69 In this context, I note that, to the extent that the applicant relies on the general store and post office building, this building is, in itself, only two storeys in height.

70 However, if I be wrong and is necessary to determine that Hastings Point has a “village centre” and it is appropriate to regard that “village centre” as being the general store and post office building (a conclusion that, given the size and scale of the commercial tourism facility to the north of the creek, would be open to challenge, respectably, in my view), I do not consider it appropriate to regard Tweed Coast Road, generally, as the “main street” of Hastings Point except in the absolutely immediate frontage of the general store. To suggest that the concept of a “main street’ would extend to the site and to some (unspecified) point beyond, on the applicant’s case, is not acceptable.

71 I have reached this conclusion because of the separation of the site from the general store by the five conventional residential allotments and the houses erected upon them as well as by Young Street itself. There is no visually obvious “main street” as might conventionally be expected in a village. This means that it would not be reasonable to conclude that the site was part of the “village centre and the main street” of Hastings Point (if there were one and if it were anchored by the general store and post office building).

72 The consequences of these conclusions is that, however the NSW Coastal Design Guidelines might be regarded in their applicability to Hastings Point and the extent to which they might have any relevance in these proceedings, they do not provide any assistance to the applicant as the site cannot be characterised, within those guidelines, as being appropriate for three-storey development – however Hastings Point itself might be characterised.

Conclusion

73 I have concluded that:

the relevant DCP controls were not adopted by the Council for the purposes of preventing this proposal;

the DCP controls, although more restrictive than the “storeys” development standard in the LEP have foundation in a proper community consultation process;

the development of the controls for the Hastings Point locality in the DCP were expressed to be of an interim nature pending the outcome of further work by the original consultant;

this work was to be completed within a timeframe generally (but not precisely) consistent with the timeframe for that work actually being undertaken by the consultant;

the processes for adoption of the various versions of the controls in the DCP were undertaken in an appropriate and proper fashion; and

there is no suggestion that, during the period since the controls were adopted on the interim basis pending further studies, the council has approved any development in the Hastings Point locality that is contrary to those controls.

74 Separately, on the merits, I have concluded, in the context of the present interim controls in the DCP, the visual prominence of the proposed building is unacceptable, in a streetscape context, when viewed travelling in a southerly direction along Tweed Coast Road.

75 In addition, to the extent that they might be relevant (a matter that I need not determine), the controls in the DCP for the Hastings Point locality – to the extent, at least, that they relate to the number of storeys permitted in a development – are not inconsistent with any possibly relevant aspect of the State government's Coastal Design Guidelines.

76 As a consequence, particularly in light of the fact that the present controls for the Hastings Point locality are clearly interim ones undergoing a methodical review process and were, initially, appropriately founded, in my view it would be inconsistent with the decision of the Court of Appeal in Zhang for me to disregard the conclusions set out above.

77 In doing so, it is not appropriate to speculate on what might be the outcome of the present process – merely to observe that, in my view, whilst it is being undertaken in a context where relevant controls of an interim nature have been put in place, it would be inconsistent with the Court of Appeal's decision for me to pre-empt the outcome of the review process and set them aside. It necessarily follows that it would be entirely inappropriate to approve the development proposal whilst that process is in train. It therefore also follows that the proposal must be rejected.

Orders

78 The orders of the Court, therefore, are:

The appeal is dismissed;

Development Application DA07/0022 for a part one, part two and part three development containing five dwellings proposed to be erected on the corner of Tweed Coast Road and Young Street, Hastings Point is determined by the refusal of development consent; and

The exhibits, other than Exhibit 1, are returned.

Tim Moore
Senior Commissioner