Waterfront Developments Pty Limited v Wyong Shire Council

Waterfront Developments Pty Limited v Wyong Shire Council - [2004] NSWLEC 573 - NSWLEC 2004 case summary — Zoe

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JUDGMENT 1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Wyong Shire Council of Development Application 194/04 for the demolition of four existing houses and erection of a mixed commercial/residential building at 1 to 7 The Entrance Road and 1 Tuggerah Parade, The Entrance (being Lots 1, 2, 3 and 5 DP23428). 2 The site has an area of ~ 2206 sq m and frontages to The Entrance Road (~ 50.8 m) and Tuggerah Parade (~ 46.3 m). The applicant proposes to effect the consolidation of four existing allotments - each of which has a single storey dwelling erected upon it and each of which has a setback varying from ~ 5 m to ~ 8 m from the relevant street frontage. 3 Public open space separates the site from the lake opposite each of its street frontages. 4 Immediately to the east is located a site owned by NSW Fisheries (the Fisheries' site) which is a single allotment to be disposed of as no longer required for public purposes. It has been offered for sale by a tendering process which, according to the sign at the front of the site, closed on 18 August 2004. No further information as to the fate of this site is available. 5 The Fisheries' site is separated from the site in this appeal by a drainage easement in favour of the council for stormwater drainage purposes. 6 To the south of the site, facing Tuggerah Parade, are three allotments each of which has a single storey dwelling erected upon it. At the conclusion of these allotments along Tuggerah Parade, Clifford Street, a cul-de-sac, runs to the east parallel to The Entrance Road. At the northern side of the head of the cul-de-sac and at the rear of the site is located a single storey dwelling on 1 Clifford Street - an allotment which is owned by Mr and Mrs D'Emanuele. 7 Although not orientated on a precise north-south axis, for the purposes of ease of explanation of this decision, I will refer to orientation on the basis that The Entrance Road runs east-west across the front of the site and Tuggerah Parade runs north-south across this frontage to the site. Future character of the area 8 At the outset, it should be noted that a number of matters of concern to the residents who gave evidence of their objections to the proposal arise necessarily as a consequence of the council's determination to zone the site for future multi level tourist accommodation development. 9 This zoning clearly and expressly envisages a number of quite significant changes to development within the precinct where the site is located. These changes include the possibility of zero boundary setbacks and, subject to qualifying of the height bonus, four-storey development. 10 This clearly contrasts with and is in stark distinction to the present nature of the development in the zone. These concerns, however, are not ones appropriate to be considered in these proceedings.

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23 Those matters which he said were determinative were: o The four storey unbroken wall on the east of the site which would face the New South Wales Fisheries' site across a drainage easement. He submitted that this is both an unsatisfactory addressing of the Fisheries' site and an unsatisfactory contribution to the streetscape when approaching the site from the east in the public domain. o Adequacy of design of the access to commercial tenancy 4. o Adequacy of design of the main ground floor entrances which it is submitted are unsatisfactory because: * Residential access is not separated from commercial access; * At times of a 1:100 flood, floodwaters will enter the building and the proposed ramping system is an inadequate response to protect the building; * The temporary and permanent resident entrances are not separated; * There is no access from commercial tenancy 1 or commercial tenancy 2 to the waste disposal facility except through the main residential lobby. o The driveway design is inappropriately located as a consequence of its noise and fume impacts on the amenity of Mrs Guy to the south and that rectification of these impacts by the erection of a baffle would have adverse amenity impacts diminishing the amelioration of the loss of views from Mrs Guy's premises. This is coupled with the broader issue raised by Mrs Guy of loss of views from her property. o The impacts of the height of the wall along the southern side of the site to Mrs Guy's property. o Inadequacy of landscaping. o The presentation of the wall on the southern boundary of the property at 1 Clifford Street and privacy impacts from the proposal's private open space on amenity of 1 Clifford Street. o The impact on the future development potential of the property at 1 Clifford Street would be contrary to the orderly economic development of that site as being an objective arising from s 5(1)(a)(ii) of the Act. o The absence a maritime themed appearance to the building which is contrary to the provisions of Annexure 1 of DCP 64 o Non-compliance with Profile D in DCP 60 which is an absolute prohibition as a consequence of cl 42CA of the LEP and is not amenable to variation pursuant to the State Environmental Planning Policy 1. o The existence of 14 tandem car parking spaces on the ground floor level being parking spaces designed to service the commercial tenancies. o An insufficiency in parking spaces on the site to comply with the council's Parking Development Control Plan (DCP 61).

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30 In evidence are plans for a large development consolidating a number of sites to the east of the Fisheries' site - leaving the Fisheries' site as an island between that re-development and the site in these proceedings. 31 NSW Fisheries have objected to the proposal and requested, in their letter of objection, that the application for the site (and that for the site to the east of the Fisheries' site) be deferred to enable further negotiations to take place concerning possible consolidation. 32 As noted earlier, the Fisheries' site has been offered for sale by a tendering process which, according to the sign at the front of the site, closed on 18 August 2004. No further information as to the fate of this site is available. 33 34 It is clear from the application for the development for the east and the present application that the Fisheries' site is not presently proposed to be aggregated with either of the developments. 35 However, the option will remain for the Fisheries' site of aggregation with 1 Clifford Street as considered with in the portion of this decision dealing with impacts on that site. In addition, the absence of specific knowledge as to what is actually occurring to this site following the close of the tender process makes it inappropriate to draw an adverse conclusion concerning development potential impacts on this site. 36 I therefore do not consider that this limit on options for aggregation of the Fisheries' site constitutes a conflict with the objectives in s 5(1)(a)(ii) of the Act. 37 On the other hand, for the purposes of impacts on the Fisheries' site, the proposed construction of a four-storey wall, effectively on the boundary of the Fisheries' site, is an element which raises concerns about future options for development on that site. 38 In addition, Mr Cole submits that I should have regard to the comparatively unrelieved presentation that this element of the building would present to those walking along the lakeside in an east to west direction when approaching the building along The Entrance Road. 39 The difficulty for the applicant in these proceedings as to its proposals to build lengths of four storey unrelieved wall on portion of its eastern boundary and portion of its southern boundary adjacent to 2 Tuggerah Parade is the fact that this site is the first major site to be re-developed in the portion of Precinct 1 to the west of Clifford Street. 40 Although the eastern development proposal includes a portion of this block to the west of Clifford Street, this application has not yet been determined by the council and, as a consequence, although concept plans are in evidence, it is not appropriate I have any regard to them. 41 No proposals exist ,of which I have any evidence, which would involve consolidation of the Clifford Street and/or remaining Tuggerah Parade properties. Indeed, the evidence from Mr D'Emanuele and Mrs Guy leads to the conclusion that no such possibility is likely to occur in the immediate future. 42 Building to the boundary adjacent to the Fisheries' site, even allowing for the fact that the drainage easement may require or create a mandated gap between developments on the two sites (although this is not necessarily the case as the council has the beneficiary of the easement could permit otherwise) would necessarily influence the nature of the development which could take place on the Fisheries' site.

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43 If construction as proposed were permitted, what would be the consequences for the Fisheries' site? 44 Professor Toon gave evidence is that it is inevitable that development to the side boundary, linking visually with that proposed for this site, is the likely future character for the Fisheries' site and any development on the aggregated sites fronting Tuggerah Parade. 45 I accept that, if the present proposal were to be approved, it is close to certain that any development on those sites would effectively be forced to adopt such a development style. This is because to provide adequate setbacks for amenity to any dwellings which would have windows or balconies facing the development on this site would require major and unreasonable side setbacks on each of those adjacent sites. 46 As a consequence, the major difficulty faced by the applicant is that, as the first development in this portion of the precinct, its design response will set the design tone for re-development, whenever if it occurs, through the whole of the adjacent portion of the precinct. 47 Whilst strictly and formally within Profile D (as discussed later), Profile D is not a building line as of right but is a capable of being built to building line subject to compliance with the range of matters contained in cl. 42 of the LEP and as supplemented by the various design principles in DCP 60. 48 I am satisfied that the effect of building to the boundary to the east on this site would impose inappropriate restrictions on future development on the NSW Fisheries' site. A similar conclusion inevitable applies to limitations on future redevelopment opportunities incorporating Mrs Guy's property. As a consequence, the application warrants refusal as conflicting with the objectives in s 5(1)(a)(ii) of the Act. 49 In addition, although a wall of the nature proposed might just be immediately acceptable in the context of the view of a pedestrian approaching from the east, the nature of the development which would be forced on the NSW Fisheries' site, if the proposal were permitted, would inevitably have the effect, on Professor Toon's evidence, which I accept, of creating an unbroken length of development cross both these sites. 50 In the long term, this presentation would also inevitably, again on Professor Toon's evidence, wrap round the corner into Tuggerah Parade as far Clifford Street. Such a presentation would be a poor general planning response in the context of the design guidelines in Annexure 1 to DCP 60. I would, therefore, reject the application on that ground as well. 51 The issue of the proposal's specific compliance with these design guidelines is dealt with later. 52 Given these conclusions, the issues relating to the impact of the eastern end of the proposal on breezes to properties to the south and suggestions that such impacts may compromise the amenity of those sites does not require to be dealt with in these reasons.

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Before

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Judgment (107 paragraphs)

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Cases Cited (2)