Richtech Pty Limited v Tweed Shire Council

CASES CITED: Stockland Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 14/03/2007, 15/03/2007 and 16/03/2007

APPLICANT Mr M. Craig, SC LEGAL REPRESENTATIVES: instructed by D. O'Donnell, solicitor RESPONDENT Ms S. Duggan, barrister instructed by Mr M. Delany, solicitor of Stacks Law Firm

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10217 of 2006 Richtech Pty Limited v Tweed Shire Council

JUDGMENT 1 This is a Class 1 Appeal No. 10217 of 2006 between Richtech Pty Limited and Tweed Shire Council, in respect of the deemed refusal of consent for a concept plan and stage 1 infrastructure development on a parcel of land known as Seaside City, Tweed Coast, south of Kingscliff. Seaside City is a 205 lot paper subdivision in DP 14895, issued in 1927. It has never been developed except for a through road shown as Catherine Street on DP 14895. The road is now called Casuarina Way, and is the connecting road for several new developments along the coastal strip.

2 On the west of Casuarina Way and within Seaside City is a single row of allotments fronting the street, and at their rear is a 9 ha lot called Lot 1971. The latter occupies all the land between the subject property and Cudgen Creek. The subject has been sand mined for rutile in the past and now consists of undulating sand hills, bitou bush and native coastal vegetation mixed together.

3 The northern neighbour to Seaside City is a new subdivision development called Salt. It has a Peppers Resort on it, plus allotments for single and multiple dwellings and holiday accommodation.

4 Along the common boundary but within Seaside City, is a laneway running east-west from boundary to boundary. On the north side of the lane, are vacant lots within Salt. They front their own road running east-west parallel to the laneway. Across Seaside City there are five paper roads running north-south, parallel to and including Casuarina Way. The eastern most is called Lorna Street, and it is proposed to connect at its northern end into a similar road in Salt. The other three north-south streets terminate on the laneways along the northern boundary and the southern boundary.

5 The southern neighbour of Seaside City is another new development called Casuarina. It, like Salt, has allotments for single and multiple dwellings, holiday accommodation, and a resort, and a village centre. Along the southern common boundary with Casuarina there is another laneway within Seaside city running east-west boundary to boundary. Whilst Casuarina Way connects through, the other north-south streets in Seaside City, including Lorna Street, terminate at the southern laneway. Within Casuarina a number of cul-de-sacs terminate near the laneway so that pedestrian and cycle access through may be obtained but not vehicular. There are mainly detached houses or dual occupancies on lots within Casuarina adjoining the common boundary.

6 Within the eastern border of Seaside City and on the east of Lorna Street, is a single row of allotments, the rear of those lots is the eastern boundary of Seaside City. Beyond it is another allotment called Lot 500. It contains the frontal dune of the ocean beach, and it runs north-south for the length of Seaside City. East of Lot 500 is the beach that runs many kilometres from Kingscliff in the north to Brunswick Heads in the south.

7 The east-west roads in Seaside City terminate at Lot 500 and Lot 1971. Apart from the two lanes on the north and the south boundaries, there are three other east-west streets. One through the centre of the subdivision is called Ocean Avenue, the other two are laneways half way between Ocean Avenue and the north and the south boundaries.

8 Because Lot 500 and Lot 1971 have been granted consent by Tweed Shire, they play no role in this appeal suffice to say that both are intended for conservation and recreation purposes and within Lot 1971 is a stormwater infiltration zone to which proposed stormwater drains will be laid from the development. Within Lot 500 the consent provides for bitou bush and weed removal, revegetation, provision of beach accesses plus a north-south cycleway that will connect to similar paths on the east of Salt and Casuarina. The cycleway comes four kilometres from Kingscliff in the north, and will eventually run along the dune system for a number of kilometres to the south through new coastal developments.

9 The original development application was lodged in 2005. Richtech, the applicant, owns 174 of the 205 lots. The unbuilt roads and lanes within the development are Crown roads by virtue of the Local Government Act 1919.

10 The complexity of ownerships, the unbuilt nature of the subdivision, and the environmental aspects caused the Council to prepare a Development Control Plan now called DCP No. 55 Seaside City version 1.0. This was drafted, exhibited, objections considered, and finally adopted on 25 October 2006. The preparation of the DCP was in fact mandated by the Tweed Shire Local Environmental Plan 2000 amendment No 3, that inserted cl 53C into the statute in September 2006. That clause allowed in the 2(e) Residential Tourist zone, uses such as detached dwellings and dual occupancies, in addition to the tourist and holiday accommodation and associated facilities.

11 The clause also requires a range of aspects to be investigated in the DCP and any subsequent development including environmental, infrastructure, traffic, coastal erosion, acid sulphate soils, bush fire, coastal access, any threatened species, buffer areas, wetland protection, vegetation weed removal, and native coastal species rehabilitation, and also the investigation of appropriate land uses to create a sense of place and a desirable character for any proposed development.

12 The DCP provides a land use plan that I was told had input from the relevant state departments including the Government Architect, the Coastal Engineering Branch of the Public Works Department, and the Rural Fire Service. The plan widens Ocean Avenue and provides a core area along it for a village centre and tourist accommodation. It leads from Casuarina Way to the Lot 500 coastal erosion buffer and coastal access and recreation land. North and south of the core area is proposed multi-dwelling housing and holiday accommodation, local parks, and then further away from the core, individual dwellings.

13 The application had asked the Council to approve a concept plan as it complies exactly with the adopted DCP land use plan, but only for the Richtech lots west of Lorna Street. The concept plan is part of the application for a staged development required under s 83(b) of the Environmental Planning and Assessment Act 1979. The statute allows the consent authority to approve the concept plan and Stage 1 of the staged development, any stage after that requires separate consent.

14 The application does include a Stage 1 to carry out infrastructure works of re-contouring the undulating sand dunes to provide appropriate building platforms and roads, the provision for sewerage, storm water drainage, vegetation clearing and rehabilitation together with dedication of the lots or parts of the lots for public open space, road widening and drainage.

15 Tweed Shire Council has recently completed an assessment of the development application and resolved to approve Stage 1 of the project, for the works outlined above, subject to withdrawal of the appeal lodged by Richtech, but did not at the time resolve to approve the concept plan. The applicant seeks approval of the concept plan in addition to approval of the Stage 1 works with some amendment to conditions within a development consent for DA 05/1464. The proceedings before the Land and Environment Court pursuant to DA 05/1464 are therefore in respect of: (a) the concept plan and (b) amendments which the applicant seeks to the conditions imposed by the council for Stage 1 works.

16 At the time of the hearing I was told there is now full agreement between the Council and the applicant on the terms and conditions for the concept plan approval and the amended conditions for the Stage 1 engineering works. The concept plan component of DA 05/1464 relates only to the 174 lots owned by Richtech, within Seaside City together with proposed access points extending east off Lorna Street to the beach. This land is shown in colour on the February 2007 version of the concept plan. The Stage 1 land clearings and engineering components of the application relate to all of the Seaside City land which compromises 205 existing lots of which 31 lots are not owned by Richtech.

17 DA 05/1464 does not include Lot 500, the frontal dune or Lot 1971, the creek side lands. The land and the subject of DA 05/1464 falls within two zones under Tweed Local Environmental Plan 2000, as follows, zone 2(e) Residential Tourist, zone 7(f) Environmental Protection (Coastal Lands).

18 The current development application does not seek consent for subdivision of any development lots, or the construction of any buildings and no demand for public open space arises from this application. The concept plan does however provide for the creation of public open space in the future in accordance with DCP 55 Seaside City. The concept plan is the last plan version advertised by Council and is identified as overall concept plan revision 3(H)(i) prepared by Malcolm Middleton Architects/EDAW dated 27 June 2006.

19 The parties tendered consent orders and conditions in Exhibit 1. The relevant concept plan and engineering drawings are in Exhibit 2 tab 17 and are listed by drawing reference numbers in Exhibit 1. There were 93 objectors of whom 26 are owners or part owners of lots in Seaside City. They have been notified of the consent orders and of the date of this hearing.

20 At the hearing only some of the objectors wished to give evidence, they were: o Mr R Gill of 11 Conifer Street Carindale Queensland, o Mr H Gill of 11 Conifer Street Carindale Queensland, o Ms N Nunan of PO Box 605 Tweed Heads New South Wales. They represent the Gill Estate, being Lots 11, 12 and 13, section 1, in DP 14895, and giving evidence for them in Exhibit 6 was Mr McCormack solicitor. o Part owner of Lot 5, section 5, DP 14895 was Ms Frizelle of PO Box 1687 Southport Queensland. o Part owner of Lots 15 and 16, section 5, DP 14895 were Mr S Blair and o Ms P McKenzie-Blair of 142 Mallawa Drive Palm Beach Queensland. Assisting them was Mr D Gibson consultant town planner. o Mr B Ring real estate agent also represented Mr AR and Mr D St George, of 4 Small Street Wagga Wagga New South Wales.

21 For the applicants evidence was given by: o Mr N Ingham consultant town planner and o Dr T Johnson civil engineer and author of the Stage 1 engineering drawings. 22 All witnesses gave oral evidence during the view of the site, and did not wish to return to the Court House for recording of their testimony. Their written objections and reports were tendered by the parties.

23 All the owners, part owners and owner bodies, such as trusts and deceased estates, in Seaside City, had given owners consent to the Stage 1 infrastructure, development application lodged by Richtech.

24 Those who gave evidence at the hearing had several major concerns. One is the location of the zone 7(f) Environmental Protection (Coastal Lands) boundary with zone 2(e) Residential Tourist zone. The latter zone covers the majority of Seaside City. The 7(f) zone line passes through all of the lots on the east side of Lorna Street. It commenced at about a quarter the depth of the lots near the north-east boundary of Seaside City, and proceeds southwards in a diagonal direction to include about two thirds the area of the lots in the south-east corner. The objectors seem to think the Court could deal with the zone boundary.

25 Mr Ring said his discussions with coastal engineering experts had shown the zone line had not accounted for sand accumulation along the beach that would allow the zone to be moved eastwards. 26 The 7(f) zone is for coastal erosion buffer zone and allows minimal development. The zone is a statutory boundary and apart from it being outside the area of the Richtech application, the Court has no power in this appeal to move the zone line. That would require the Council and the Department of Planning of NSW and its Minister to determine.

27 As some consolation the Council has attempted to give some benefit to the southern most 9 Lots in Lorna Street, being the most affected lot owners, Inter alia by including in the DCP special provisions to exchange 4 m of Lorna Street with 4 m of the 7(f) zone of each of the 9 Lots.

28 In regard to all of the lots east of Lorna Street, the DCP also allows front setbacks of only 3 m with up to 50% of the frontage of the lot to be permitted to have a 1.5 m front setback and zero side setbacks for most of the side boundaries of each lot. The DCP also allows a 4 m cantilever of an upper floor deck over the 7(f) zone facing the ocean.

29 Another concern of objectors is that their lots have a 2-storey height limit for those lots east of Lorna Street, when the rest of Seaside City has a 3-storey limit. They also noted that within the Salt development and the Casuarina there is a 3-storey limit. They insisted they had been told by Councillors and staff during the preparation of the DCP, that 3-storey height limit would apply to their land too. Once again their lots are not part of the subject application and any change to the height limit is subject to council amending the DCP or considering an individual application on their lots. This hearing cannot deal with it. 30 Another concern was to do with Lots 12, 15 and 16 in Section 5, adjoining and near the boundary with the Salt development in the north-east corner of Seaside City.

31 The Salt development had been allowed to raise its land with fill and retain it against the common boundary with Seaside city using a masonry wall varying between about 1.2 m and 2 m in height. The wall adjoins the 6 m wide laneway previously referred to along the common boundary. The road servicing these lots within the Salt development is sloped down to the common boundary with the subject property to meet up with the proposed construction of Lorna Street.

32 DCP No 55 does not show land fill on Lots 12, 15 and 16 similar to the Salt development. The lots in Salt, fronting the cycleway and the erosion buffer in front of the Salt development have a 3-storey height limit. The objectors said this is unfair and unreasonable to require that their land should not be filled, and should have a 3-storey height limit instead of 2-storey. Further that the provisions of the DCP should be changed to allow similar provisions to Salt. Otherwise it means their land being on the south side would be overshadowed in winter by any 3-storey house or dual occupancy built on the adjoining vacant lot. And, being at a lower land level, and 2-storey height limit, any building on their land would be dwarfed by the neighbour, on the Salt development. This would create an unreasonable impact on the streetscape, and the amenity impacts on any development on their land. 33 They asked that the Court should condition the Stage 1 infrastructure works to require Lorna Street to be raised to provide for a level access to their land, and for fill to be permitted to a similar level to the adjoining Salt allotment on the common boundary, and to taper the fill back down to the proposed levels further south within Seaside City.

34 Dr Johnson said that the road on Salt, that Lorna Street is to connect with, had been constructed as could be seen on the site, during the view. The road is constructed to the Council's conditions and to its requirements and specified levels. To raise Lorna Street within Seaside City would mean raising the road within the Salt development and the latter is probably beyond the Court's power. It would also mean importing fill as Dr Johnson said, when the re-contouring design of the site and infrastructure had balanced cut and fill volumes in accordance with Council's DCP 47. It would also mean affecting lots on the west side of Lorna Street involving other owners.

35 The respondent put that the DCP 55 provisions had established what the Council wanted for Lorna Street, and the subject application complies with that. Given the wide public and owner consultation in the preparation of DCP 55, the precedent case of Stockland Pty Ltd v Manly Council [2004] NSWLEC 472 gave the control plan considerable weight against any amendment. 36 I agree with that submission. In any case the Council's advocate said the owners of the lots could, in any development application to Council for a building on their own lot, ask to be allowed to fill. And it would mean only an inclined driveway if Council allowed it, the same as occurred on some of the Salt allotments that are filled above the level of the adjoining road.

37 Mr Ingham noted that the 6 m wide laneway would separate any house on the adjacent Salt allotment from any building on the nearest lot in Seaside City. That would provide some separation to minimise overshadowing.

38 I have concluded that the determinant in this particular objection is the existing road in Salt that Lorna Street must connect to. I cannot, in this appeal, require the road on the Salt land to be raised in order to connect with any raising of Lorna Street on the subject land. As a consequence Lorna Street should be constructed as designed.

39 One further matter I would like to comment upon arises from Exhibit 6 Mr McCormack's objection on behalf of the trustees of the Gill Estate. Apparently the father of the three trustees was a Gallipoli veteran and bought six lots in 1927. The history indicates three of the lots were lost in unfortunate circumstances in 1932, and in 1987 the Public Works Department of New South Wales established the first one in 100 year coastal erosion zone that has evolved into the 7(f) zone. The trustees allege they have seen technical reports that indicate the 7(f) zone line may be able to be relocated. They are also concerned about the narrowing of Lorna Street. All these changes over 80 years have seen their land affected, in their opinion, from a potential of say 92 holiday flats on the 6 Lots as measured against the Casuarina development medium density units, and reduced to perhaps three dual occupancies.

40 Whilst I can appreciate the feelings they may have, these matters are beyond the power of this appeal, that is only for the Richtech land in the zone 2(e) area, and for the Stage 1 infrastructure works that are mainly within the Crown Road reserves.. Any redress they may seek or review of existing statutes and development controls need to go before the Council, and some are within Council's control and others, if supported, need to go onwards to the New South Wales Department of Planning and its Minister. The Council appears to be carrying out its role of environmental protection and orderly control of development that has been established by State Government over the last 80 years of experience in natural disasters along the coast and the necessary protection of community from future adverse impacts by planning controls.

41 Another matter I will comment upon is draft condition 3.8 in Exhibit 1 requiring monitoring of the site for radiation. Dr Johnson explained that it is to do with the former sandmining for rutile of the coastal areas between Kingscliff and Brunswick Heads in the last 40 years. The sand dredgers took the rutile and zircon but the ilmenite largely remained in the tailings. Ilmenite has a radiation level that in high concentrations can be unacceptable.

42 In developing Casuarina and Salt, tailing dumps were found that required the ilmenite to be reduced in concentration to acceptable levels by mixing with the sand during re-contouring operations. Mr Rich who has personal knowledge of the previous sandmining operations said he knew of the tailings dumps on the Salt and the Casuarina land but to his knowledge there is no such dump on Seaside City. 43 Dr Johnson agreed with this from the findings of the draft Seaside City Radiation Report of 2006, and said the condition of consent is only to ensure the re-contouring operation does not inadvertently create any pockets of concentration of ilmenite.

44 The applicant and the Council have agreed on a draft Seaside City Planning Agreement under s 93 of the Environmental Planning and Assessment Act 1979. It must be entered into as a condition upon any granting of any consent. This relates to the carrying out of infrastructure works proposed and the dedication of land. It incorporates the relevant provisions of the Tweed Shire s 94 Plan No 28 Seaside City adopted by the Council on 23 October 2006. The s 94 Plan sets out the public infrastructure works needed as a result of the development of Seaside City and the developer contributions for works, or land in lieu of contributions, that are required.

45 Overall, I am satisfied that the proposal and its technical studies and the draft conditions of the consent orders between the parties deals satisfactorily with the applicable statutes and controls being the Environmental Planning and Assessment Act 1979, the Tweed Local Environmental Plan 2000, the North Coast Regional Environmental Plan 1988, State Environmental Planning Policy No 55 Remediation of Land, State Environmental Planning Policy No 65 Design Quality of Residential Flat Development, insofar as it applies to the Concept Plan under s 83(b) of the Environmental Planning and Assessment Act 1979, and Tweed Shire DCP No 55 Seaside City. 46 Other applicable statutes and controls are State Environmental Planning Policy No. 71 Coastal Protection, and the New South Wales Coastal Policy 1997, the Tweed Shire Development Control Plan No. 2 Site Access and Parking, Tweed Shire Development Control Plan No. 47 Cut and Fill of Residential Land, Tweed Shire Development Control Plan No 55 Seaside City and the New South Wales Coastal Design Guidelines , and finally Planning for Bushfire Protection 2001 by New South Wales Rural Fire Service. The Tweed Shire DCP No 16 for subdivision is in my opinion superseded for the purposes of this application under DCP No 55 because the latter has its own subdivision provisions. Therefore the orders of the Court by consent of the parties are:

1. The consent orders in Exhibit 1 are granted. 2(a) Development consent is granted to DA05/1464 for staged development and the concept plan under s 83B of Environment Planning & Assessment Act 1979, for land at Seaside City, Tweed Coast as described in Schedule A and Schedule B of Annexure 1 hereto, subject to the conditions in annexure 1.

2(b) Development consent is also granted for the first stage of the development generally comprising civil works including clearing and removal of vegetation, bulk earth works, road construction, drainage works, water supply reticulation and sewerage works on the land described in Schedule B (the civil works land) subject to conditions contained in Annexure 1 hereto.

3. The exhibits are returned to the parties except Exhibits 1, 2 tabs 2, 3, 17 and Exhibits 3, 6, 7, 8 and B, C, D, and G. The agreement by the parties of no order as to costs is noted.

      K G Hoffman
      Commissioner of the Court
      ljr

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