Telco Select Pty Ltd v Tweed Shire Council

KEY ISSUES: Development Application :- Integrated development of six dwellings, floor space ratio, height, SEPP 1, view sharing, traffic, character of area

Environmental Planning and Assessment Act LEGISLATION CITED: State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 71 Development Control Plan No. 6

Tenacity v Warringah [2004] NSWLEC 140; CASES CITED: Winten Property Group v North Sydney Council [2001] NSWLEC 46 LGERA 130; Goldin v The Minister for Transport, LGERA 121

APPLICANT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Delany, solicitor SOLICITORS Stacks Northern Rivers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11455 of 2005 Telco Select Pty Ltd v Tweed Shire Council

JUDGMENT This determination was given extemporaneously and it has been edited prior to publication

1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act. This is a matter that has come before me in the last two days as consent orders for a property known as 17-19 Moss Street or 16-18 Hungerford Lane, Kingscliff.

2 The area can be described as a mixture of residential building types in the form of residential flat buildings, dwelling houses, dual occupancies and an area that is undergoing change with recent examples of some architecture that is probably not as attractive or aesthetically pleasing and also with dwellings that are ripe for redevelopment. The character of the area is marked by the availability of extensive and wonderful views of both Cudgen Lagoon and the beach area. 3 The subject property has a number of constraints such as a sewer line, the steepness of the topography rising some 11 m from the east to the west and also it has the opportunity of expansive views and views became one of the major issues in the proceedings. That is, of view sharing which is always a very much guarded and valued commodity.

4 The Court had the opportunity of hearing from experts in these proceedings. The Court was greatly assisted by Mr Ian Lonsdale, council's development assessment planner and the applicant's consultant planner, Mr Adam Smith and the Court notes their assistance in responding to the Court's questions on many occasions. The Court also had the benefit of Mr Morgan, council's engineer in terms of the traffic capacity which was in response to questions raised in terms of parking bays and also the issues raised by the resident objectors on the traffic and the capacity of Hungerford Lane. 5 The Court took the opportunity of viewing the subject site and the surrounding area and also revisited the site so that the residents could have a greater understanding of what the amended plans (that are the subject proposal before this Court in its assessment) and what the changes are in terms of the original development application, the s 82A review and now the plans as they are in Exhibit B. 6 The Court heard evidence from Mr Voight at No. 44 Hungerford Lane, Mr Nugent at 48 Hungerford, Mr Wren at 3/14, Mr Liddington at 2/14 and Mr McAllister at 38 Sutherland and Mr and Mrs Norris at No. 2A. The Court has given very detailed consideration to their concerns and in that regard the experts have also assisted. As with many developments that come before the Court they are put under greater scrutiny and it is the role of the Court to ensure that all of the issues raised are addressed. 7 This comes before the Court as consent orders but clearly, I must consider the development application in the context of all the relevant controls. The Local Environmental Plan 2000 for Tweed is the relevant LEP and the subject site is zoned 2B under the LEP and as such, it is within the medium density residential zone, the zone objective, or the primary objective being: "To provide for and encourage development for the purposes of medium density housing and high density housing that achieves a good urban design outcome." 8 The only other relevant control, apart from definitions, is cl 16 which relates to the height map and the subject site is shown on the height map for Kingscliff Hill area as two storeys. The proposed development is predominantly a two storey development with portions, some 15 percent, which do not comply and are three storeys in terms of the definition under the LEP. As such, a State Environmental Planning Policy No. 1 objection was lodged with the development application and for the amended plans a further SEPP 1 objection have been received. 9 The other relevant control is the State Environmental Planning Policy No. 71 and the Department of Planning's predecessor, DIPNR, has advised that the provision concerning the need for a master plan is waived in the circumstances of this case. 10 The council also has a number of development control plans which are relevant to the assessment and while I will not cite all of the provisions in this ex tempore judgment, I have given central consideration and genuine, proper and realistic consideration to the development control plans. I have read these development control plans as well as the other relevant provisions to inform my assessment of this development application. 11 The residents' concerns are with respect to view loss, view sharing and view corridors and the access or the pedestrian access path leading to Moss Street, the two storey height limit in terms of the LEP and compliance with provisions in the DCPs and parking and traffic are also significant issues for the residents. 12 The first of the development control plans is Development Control Plan No. 6 which is for multi-dwelling housing. This DCP contains performance criteria for development that is multi-dwelling housing and "the design of multi-dwelling housing may achieve the site density objective where the scale of new development is compatible with and sympathetic to the scale and bulk of existing development in the locality". The performance criteria are also relevant in my assessment of the proposed development as the acceptable solution of 0.5:1 is not satisfied. In terms of Mr Lonsdale's evidence to the Court acceptable solutions are provided as examples of what is considered acceptable to enable the performance criteria to be achieved but should not be interpreted as an alternative prescriptive form of regulation and in that regard, it is important that whilst or when there are standards as such, that one is informed by what the performance criteria are and clearly, a development may satisfy the performance criteria but may not necessarily be a design that the council identifies as acceptable solutions or deemed to satisfy. 13 The requirement for 30 percent of landscaped area, landscaped area is defined as not only soft area and the proposed development satisfies council's requirement in this regard. 14 The view sharing is contained within DCP No. 6 and it has performance criteria. In particular, "all property owners should be able to develop their property within the established planning guidelines however, existing views should not be substantially affected where it is possible to design for the sharing of views". Consideration is to be given to the standards and what impact any non-compliance may have in terms of views. View sharing is a matter that has been addressed in this Court on numerous occasions in particular, in Tenacity v Warringah [2004] NSWLEC 140, the Senior Commissioner of this Court set out relevant questions to assist in assessing applications. View sharing is one concept that must be considered in the context of the development of the subject site as well as other properties that overlook or have the ability to share in a view. In terms of the proposed development, I am satisfied that view sharing is achieved by the proposal. The form of this by breaking the development up into four dwelling houses that front Hungerford Lane is clearly a more desirable outcome to achieve view sharing than an alternative form of development that is permitted in the 2B zone, which includes residential flat buildings that by their nature would present as a much bulkier, larger form.

15 It is noted that I am assessing the amended development application before this Court and the original development application, whilst it was significantly higher would not justify approval by the Court. I must focus on the assessment of this development application and I am satisfied that what is shown in Exhibit B and with the further reduction of 200 mm which has now been agreed to by the applicant, I am satisfied that view sharing is achieved. When there is a development opposite properties that do enjoy expansive views, clearly this must be seriously considered in terms of what clever design or a better design can achieve in terms of view sharing.

16 The test is not just to look at the numeric compliance, but also to look at the design itself and I am satisfied that the design of this development with six integrated dwelling houses on the subject site, four that front Hungerford Lane and two to Moss Street, is one that will afford view sharing not only from the properties opposite but there is the opportunity for view corridors from the street which is very important in seascape areas so that people have a context in terms of pedestrians as they walk down the street. I am satisfied that the pedestrian access way with the realignment and with the dog leg will achieve view corridors.

17 I am also satisfied the access way whilst it is a constraint also provides an opportunity and is utilised in the proposed development to service the vehicular access for the six dwellings from Hungerford Lane. This provides the advantage of not having garage doors onto Hungerford Lane, clearly improving the streetscape in this portion of Hungerford Lane. The access way also will be upgraded at the applicant's expense to provide access to Moss Street and this is achieved by the shared access of the vehicles with a clear demarcated pedestrian path to ensure safety. I am satisfied that in terms of the residents' concerns about the access way, the resolution of providing both the vehicle access to the six dwellings and the upgrading for the benefit of the community is one that should be embraced and therefore, the proposal in this regard is more than satisfactory.

18 It is noted that the council has assessed the increased gradient and it satisfies the Australian Standard and I accept this advice. Also, the applicant has engineer's advice for the design width to ensure that a parked vehicle or a vehicle can stand on the driveway with another vehicle entering or egressing. I am satisfied that in terms of Hungerford Lane, that the proposed development in terms of the traffic generation that the additional vehicles would not warrant refusal of the application. In this regard, the Court has the benefit of Mr Morgan's evidence in terms of the capacity of Hungerford Lane and in his opinion, the capacity serves the 2B zone. 19 I will say at this point in my judgment many of the residents' concerns go to the zoning of the subject site. The zoning of the site has been in place, and reinforced in the LEP 2000 but it was at least in place in 1987. People do not always embrace change, but in terms of the change that this proposed development represents having regard to the zoning, I am satisfied that it is a good urban design outcome and should be supported. 20 The consistency of the implementation of the development control plans by council was raised during the proceedings and clearly in terms of Manly v Stockland McClelland CJ, the former Chief Judge of this Court stated that where councils apply development control plans in a consistent manner, clearly they should be given greater weight. It would appear that some of the provisions in the development control plans may not have been consistently applied by council, nonetheless, I have still given focal consideration to the intent of the controls and in particular, the performance criteria and I am satisfied that this development is one that satisfies the objectives of the plans even though the numeric suggested solutions may not be complied with. That is not the test, the test is for an assessment of the overall development and in terms of Zhang v Canterbury CC [2001] NSWCA 167, a Court of Appeal judgment, development control plans are to be given real, genuine and proper consideration and although they are discretionary and not mandatory. 21 The provisions of the Kingscliff Hill Precinct in DCP 43 are also relevant to my considerations. For developments east of Sutherland Street between Cudgen Creek Estuary and the beach front, multi-unit development is permissible in the zone and as I said, that includes residential flat building, and dual occupancies in integrated developments such as the proposed development. The DCP states that there are limited opportunities for redevelopment east of Sutherland Street but in terms of this precinct, or the hill, it is envisaged that any redevelopment or refurbishment which does occur will comprise of high quality medium density development. In terms of the future vision for Kingscliff Hill Precinct, I am satisfied that the proposed development is of a high quality, medium density development that will fit comfortably in the future streetscape and the current streetscape of Hungerford Lane. It is important that it is to retain its low key residential character and in many respects, an integrated housing development in the form proposed is more consistent and compatible with the existing dwelling houses than residential flat buildings per se. 22 Kingscliff Hill medium density zone is an attractive residential area with buildings that respect the slope of the land and allow for the retention of views available from adjoining land and I am satisfied the proposed development will achieve this objective. It also ensures that development on a visually prominent site is relatively unobtrusive. It could be seen from the site inspection when viewed from the opposite side of the waterway that whilst the site is visible, the proposed development is one that will blend in with the existing topography and it is of a form that steps down.

23 As I said, the Court is to assess the development application before it and the threshold question is the State Environment Planning Policy No. 1 objection which relates to a variation from cl 16 to increase in parts the development from two to three storeys. The SEPP 1 objection have been provided and the Court has the benefit of the experts' consideration of the variation to the SEPP 1. Mr Lonsdale is satisfied the proposed development should be supported and the SEPP 1 objection allowed. Clause 16 of the LEP has the objective clearly identified. In terms of the judgment Winten Property Group v North Sydney Council [2001] NSWLEC 46 LGERA 130 by Lloyd J sets out a number of steps at 79. The height is clearly a standard and the purpose of the standard or the objective is: "to ensure that the height and scale of development is appropriate to its location surrounding development and the environmental characteristics of the land". In a State Environmental Planning Plan No. 1 variation, I must be satisfied in the circumstances of the case that the objective is satisfied or complied with and in terms of the variation in the amended plans, the height and scale of the development is appropriate to its location having regard to the topography, having regard to the view sharing concept and also, it is appropriate in terms of surrounding development by allowing view sharing and having regard to the environmental characteristics of the land. The proposed development has been lowered such that it sits and respects the topography and has been stepped down to also respect the topography. 24 I am satisfied that the non-compliance in particular will not impact in terms of undue view loss for the properties on the western side of Hungerford Lane therefore, the objective is satisfied and the object or the aims of the state policy itself allows for variations to facilitate appropriate development. The SEPP 1 objection should be allowed and the variation is justified in the circumstances of this case. This should not be seen as a precedent. Clearly, I have looked at the merits of this development application in concluding that the SEPP 1 objection should be upheld. It is of little weight to the Court in terms of other developments that may have been approved or allowed under SEPP 1 and clearly the character of the area is made up of developments that also pre-date the current controls but nonetheless in terms of cl 16, the character of the area is made up by those developments that do pre-date those controls and I am satisfied that the proposed development will be more than an appropriate fit and also meets the objectives of council's controls, in particular, cl 16 of the LEP. 25 The issue of precedent was raised by many residents and I can understand how there is often frustration when DCPs are not applied consistently and the issue of precedent is relevant to my assessment. It is human nature I refer to the judgment of Lloyd in Goldin v The Minister for Transport, LGERA 121 at 101, where he extensively went into the issue of precedent. It is only human nature that where adjoining landowners or other landowners may seek to invoke decisions on certain controls or inconsistencies, then clearly precedent is an issue. This also applies to consistency with which DCPs are applied. At the same time, I must have a holistic regard or reading of all of the controls together in ascertaining and determining whether a development is appropriate. I am satisfied that this particular development could not be seen as a precedent for a variation of the two storey height limit. The variation is as I stated, 10 percent on the northern elevation and 14 percent on the southern and with the impediment of the level of the sewer and also with the reasonable expectation to share in the views afforded, I am satisfied that this should not be seen as a precedent together with the fact that any non-compliance as I stated is not a matter that has unreasonable impact in terms of adjoining properties or the streetscape. 26 The Court's Practice Direction was raised yesterday and the Court's Practice Direction for consent orders requires that objectors be appropriately informed given the council is no longer contesting the appeal and is entering into consent orders. While the Court did have some concerns yesterday as to whether the objectors had been adequately advised, I am now satisfied that with the second site inspection this morning that the objectors have been well informed and are aware of the current proposal before the Court in terms of my assessment today and they also have the benefit of the experts.

27 The Court must assess the development application in terms of council's planning regime and I have comprehensively assessed the development application in this context. 28 The overall development also has benefits, as I stated and as was submitted by Mr Delany and Miss Hill. The outcome is for a pedestrian access path from Hungerford Lane through to Moss Street that will be provided at the expense of the developer and the public benefit of parking lay-bys to the street that the council has now agreed would be a public benefit. As could be seen on the view and heard from the objectors, the parking issue is of concern due to the narrow pavement of Hungerford Lane approximately 6 m, wide. There is a need for parking to be provided in a practical sense and the proposal for the lay-bys and with the additional land to provide for the parking spaces is a public benefit that the applicant is prepared to provide. 29 The proposed development is generally compliant in terms of council's controls and the focus must also be on the performance criteria or the objectives of those controls and not necessarily the numeric standard, of 0.5:1 FSR. In my assessment the performance criteria are satisfied with the proposal. It would appear that there have been numerous developments approved by council that are significantly much greater than 0.5:1 and as submitted by Miss Hill, in fact very few have been approved at the numeric requirement. However, I do not rely on this fact as this proposal is approved on its own merits.

30 The Court is satisfied that the proposed development will make a positive contribution to the Hungerford Lane streetscape and a further amendment has been agreed to by the applicant that is, to set the buildings back 1 m further from Hungerford Lane and the reduction of the 200 mm will mean that the height to aboveground at Hungerford Lane will be some 5.8 m. The maximum RL of the proposal is now 28.3 with the reduction of 200 mm. It is also appropriate that a final set of plans be part of a deferred commencement to reflect both the increased setback and the reduction in height. The council and the applicant have agreed to a number of conditions and they will be forwarded to the Court within the next seven days and the formal orders of the Court will be made on the receipt of the conditions received. 31 Accordingly, the formal orders of the Court will be: 1. The appeal in respect of the property known as both 17-19 Moss Street and 16-18 Hungerford Lane, Kingscliffe, is upheld by consent.

2. The SEPP 1 objection to vary the 2-storey height limitation contained in cl 16 of the Tweed LEP 2000 is allowed.

3. The development application submitted to Tweed Shire Council and as amended and shown in the plans exhibit L prepared by Neylan Group, Architecture & Urban Design drawing Nos. 0405-SK01C, SK02D, SK03C, SK04D, SK05E, SK06E, SK07D, SK08C, SK09G, SK10E, SK11E, SK12E, SK013A is determined by the granting of a 'deferred commencement' consent and the conditions contained in Annexure 'A'.

4. The exhibits except for B, K, L, 18 and 21 are returned to the parties.

              J S Murrell
              Commissioner of the Court
              rjs

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