Stokes v Tweed Shire Council
[2017] NSWLEC 1542
•23 August 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Stokes v Tweed Shire Council [2017] NSWLEC 1542 Hearing dates: 23 August 2017 Date of orders: 23 August 2017 Decision date: 23 August 2017 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld.
2. Development Application DA16/0742 for a two lot subdivision at 2 Cambridge Court, Kingscliff is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit A.Catchwords: DEVELOPMENT APPLICATION: subdivision – non-compliance with minimum kerb frontage requirement Legislation Cited: Environmental Planning and Assessment Act 1979
Tweed Development Control Plan 2008
Tweed Local Environmental Plan 2014.Category: Principal judgment Parties: Fergus Stokes (Applicant)
Tweed Shire Council (Respondent)Representation: Counsel:
Solicitors:
Mr C Gough, solicitor (Applicant)
Ms M Hawley, solicitor (Respondent)
Storey & Gough Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2017/126607 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal against the refusal of Development Application DA16/0742 that seeks approval for a two lot subdivision at 2 Cambridge Court, Kingscliff (the site). The subdivision provides that proposed Lot 1 will have an area of 568.6 sqm and proposed Lot 2 will have an area of 691.4 sqm.
The site
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The site is described as Lot 14 in DP803814. Cambridge Court is a cul-de-sac and the site is located within the cul-de-sac head. It has an area of 1260 sqm and is a battle-axe allotment. The lot frontage to Cambridge Court is 4.236 m with an approximate 3.178m kerb frontage. The site is generally flat with a dwelling and a number of existing trees, mainly around the perimeter of the site. Proposed lot 1 will contain the existing dwelling.
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The locality is an established urban area that is situated about 1.2 km south-west of Kingscliff CBD. The Kingscliff TAFE is located to the west of the site, and the Kingscliff High School is located to the south. The land to the north and east is used for residential purposes.
Relevant planning controls
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The site is zoned R2 Low Density Residential under Tweed Local Environmental Plan 2014. (LEP 2014) The proposed subdivision satisfies all relevant development standards within LEP 2014.
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Tweed Development Control Plan 2008 (DCP 2008) also applies. The relevant parts are cl A2 - Site Access and Parking Code, and cl A5 - Subdivision Manual. The principal, if only contention in the proceedings, focuses on the non-compliance with cl 5.4.12 where it states,
"Minimum Street Frontage:
A minimum 9.0 metres of kerbed frontage is required for each lot, unless alternate provisions are made for parking."
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The proposed subdivision is essentially the re-subdivision of an existing battle-axe lot with an existing street kerb frontage of 3.178 m. This access is to be retained, but is to be equally divided between each lot, but with each having reciprocal rights-of-way. I did not understand there to be any dispute over access to the lots.
The evidence
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Expert town planning evidence for the council was provided by Mr Seth Philbrook, and for the applicant by Mr Darryl Anderson. Expert engineering evidence for the council was provided by Mr Ray Clark and Mr Ray Musgrave, and Mr Simon Crank provided evidence for the applicant.
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The position put by the council experts is that the minimum 9 m kerb frontage is not provided and the application should be refused. The 9 m requirement is to provide adequate on-street car parking for subdivisions and allows for a 3 m access and a 6 m area at the kerb for a parking space to cater for adjacent residential land users. This is considered relevant in this location, given that it attracted car parking for the nearby high school.
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While the applicant has sought to provide alternate parking arrangements; that is, two spaces plus a visitor space on each of the two new lots, this is not considered suitable by the council experts as the location of these spaces is not visible and do not provide parking that is publicly available. Also, the parking spaces are likely to create safety issues, particularly from larger vehicles if turning areas are not available and this may require reversing out into the street. While there may be on-street parking within 70 m of the site, it is not reasonable to expect visitors to walk 70 m without a formed safe footpath, as this may create amenity and safety issues.
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The applicant’s experts take a different approach in that the 9 m requirement in cl 5.4.12 does not apply because the application gains the exceptions provided by cl A5.4.2, "Urban Structure". The clause states:
"Infill subdivisions: infill subdivisions may be constrained by an existing urban structure that may make it difficult to comply with some of the urban design objectives and criteria in this manual. Infill subdivisions will, therefore, be exempt from those requirements where the application is so constrained."
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The applicant argues that the proposed subdivision is “infill subdivision” and constrained by “existing urban structure” and is, therefore, exempt from the provisions of cl 5.4.12.
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Alternatively, Table 2 in cl 4.2 of DCP 2008 - Site Access and Parking Code requires "One space per dwelling, plus provision for driveway parking on another vehicle" for dwelling houses therefore the provision of three spaces for each lot satisfactorily addresses this requirement and as such the subdivision is compliant for car parking.
Findings
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In considering the different evidence, I can comfortably agree with the position put by the applicant's experts for a number of reasons. First, I do not find that the words “infill subdivisions” in cl A5.4.2 are ambiguous or difficult to understand, as suggested by some of the council experts. The fact that DCP 2008 was not drafted by parliamentary counsel or a lawyer does not automatically make it difficult to understand its meaning. Given the ordinary meaning of the words, I have no trouble in concluding that the proposed subdivision is infill subdivision as it seeks to subdivide land within the existing subdivision in an urban environment. The fact that the subdivision standards may have changed over time or that it may be called another name (such as “resubdivision” by Mr Philbrook) does not alter the fact that the proposed subdivision is “infill subdivision” for the purposes of cl A5.4.2.
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Secondly, and using the ordinary meaning of the words, I accept "existing urban structure" must mean the existing subdivision, including lots, roads, kerbs, drainage and every urban element of that subdivision. The clause also does not provide carte blanche for any subdivision if it is deemed to be an infill subdivision as it is limited by the words, "where the application is so constrained." In my view, there can be no doubt that the application gains the benefit of the exemption provisions in cl A5.4.2 and there is no basis to refuse the application for the reasons suggested by the council experts.
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I also accept the applicant's alternate solution if I am found to be incorrect with their principal submission. The applicant's position is that the parking required under Table 2 can be provided for proposed Lot 1, together with the additional visitor space such that vehicles can enter and leave in a forward direction. I concur with this conclusion. As proposed Lot 2 only provides a building platform, it is not possible to conclusively say that the required spaces and visitor space will operate in the same way as Lot 1; however, I accept that this can be adequately addressed as part of the consideration for a future dwelling on this lot. In my view, the available area for this lot supports such a conclusion. Given these findings and that each lot can satisfy the normal requirements for a dwelling house in Table 2 in cl 4.2 of DCP 2008, the refusal of the application cannot be supported for this reason.
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While the approach of providing three spaces on-site has been accepted by the council on occasions, their most recent approach to this clause is to exclude the provision of an additional space on site in favour of a space at the kerb on the road reserve due to the ongoing need for monitoring of the additional space on the site. I am not satisfied that this is an acceptable reason to refuse a subdivision application that would otherwise be acceptable.
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I would also add in response to the evidence from the council experts that it is not possible, nor should it be necessary, to design for every eventuality, such as cars and delivery trucks arriving at the same time. In most instances where there is such a conflict, simple courtesy and patience and usually sufficient to address these infrequent problems. Based on these conclusions, there is no reason why the appeal should not be upheld and development consent granted.
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For completeness, I will briefly deal with some of the other issues raised by the parties. The proposition that a subdivision should also provide public on-street parking, as well as off-street parking, is not a well-used approach in local government, although I accept that it does have a practical benefit. Even accepting this approach in its broadest intent, in my view it would be necessary to establish that there was a need for on-street parking, and that insufficient on-street parking was not available for residents and visitors. While it was obvious from the site inspection that Cambridge Court was used by students for parking, it is not the responsibility of residents to provide parking for these students. Other options exist to restrict student parking, if considered necessary.
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There is also some sense in the submission by Mr Gough that the refusal of a subdivision application on the basis of non-compliance with the minimum 9-m kerb frontage could, subject to the particular circumstances, be in conflictt with the LEP 2012 provisions for subdivisions.
Orders
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The orders of the Court are:
1. The appeal is upheld.
2. Development Application DA16/0742 for a two lot subdivision at 2 Cambridge Court, Kingscliff is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit A.
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G Brown
Commissioner of the Court
126607.17 Brown C (C) (193 KB, pdf)
Decision last updated: 28 September 2017
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