Planit Consulting v Tweed Shire Council

Planit Consulting v Tweed Shire Council - [2009] NSWLEC 1383 - NSWLEC 2009 case summary — Zoe

[42]

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.

[49]

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.

[51]

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.

[59]

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.

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Judgment (65 paragraphs)

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Cases Cited (7)