Cowman Stoddart Pty Ltd v Shoalhaven City Council [2006] NSWLEC 4

Land and Environment Court of New South Wales

CITATION : Cowman Stoddart Pty Ltd v Shoalhaven City Council [2006] NSWLEC 4

APPLICANT PARTIES : Cowman Stoddart Pty Ltd RESPONDENT Shoalhaven City Council

FILE NUMBER(S) : 10787 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- Change of use - supply of holiday accommodation versus permanent residential use - site area - landscaped area - objectives of the Zone 3(g) Development Area - coastal vegetation protection

LEGISLATION CITED: Shoalhaven Local Environmental Plan 1985 Jervis Bay Regional Environmental Plan 1996

DATES OF HEARING: 31/10/2005

DATE OF JUDGMENT: 01/12/2006

APPLICANT Mr P Moggach, solicitor LEGAL REPRESENTATIVES: Of: Kearns & Garside RESPONDENT Mr G Gleeson, solicitor Of: Morton & Harris

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

12 January 2006

10787 of 2005 Cowman Stoddart Pty Limited v Shoalhaven City Council

JUDGMENT 1 This is a Class 1 appeal No. 10787 of 2005 between Cowman Stoddart Pty Limited and Shoalhaven City Council, in regard to the refusal of a change of use proposal for Units 5-11 inclusive and Units 13 and 14 at No. 6-10 Monarch Place, Callala Bay. Its legal title is Strata Plan SP69928. 2 Those units currently had consent only for short term tourist accommodation. 3 The change of use proposed was to allow both permanent residential and short term holiday accommodation in those units. Unit 12 is the manager's flat and is already permitted to be permanent residential occupation. 4 The apartments are in a building of 2-storeys above basement carparking at Lot 1 DP 1040899 being No. 6-10 Monarch Place, Callala Bay. In 2 other buildings on the site are Units 1-4 and Units 15 and 16. They are all 2 storey-townhouses and are already permitted to be permanent dwellings but some are used as weekenders. 5 All the units face a public beachfront reserve at the mouth of Wowly Creek. The reserve is heavily vegetated. Wowly Creek is a popular swimming place in summer for families with young children. The main access to the creek is via Monarch Place where there is a small public car park. 6 The site is zoned No. 3(g) Business Development Area under the Shoalhaven Local Environmental Plan 1985. 7 On the south side of the site is another development of 7 townhouses with access from a street called Superb Crescent. Some of the townhouses face a continuation of the public beachfront reserve facing Jervis Bay. They are available for permanent residential use but several are used as weekenders. On the west of the site are 4 vacant residential size lots also fronting Superb Crescent. These neighbouring developments are zoned Residential 2(a1). Further west and south are detached houses and cottages in the same residential zone. 8 To the north of the site is vacant bush and heath land zone No. 7(f3) Environmental Protection. The roadway of Monarch Place and the public carpark are in that zone also. 9 East of the site is zone 7(f1) Coastal and that comprises the beach and reserves. 10 The subject site has only a narrow frontage to Monarch Place but has quite a large area of 4330 sq m. It is an irregular shaped allotment and relatively flat. 11 Part of the history of the site is that it and the land comprising the foreshore reserve, the townhouses on the south and the residential lots to the west on Superb Crescent over to Sealark Road were originally a single allotment and zoned 3(g) Business Development Area. That zone was described to me as being for mixed use tourist facilities. It came into existence in 1985. 12 In 1993 a subdivision application was lodged that brought about the current layout of the area between Sealark Road and Wowly Creek and Jervis Bay. There has been no development control plan for that area adopted by the Shoalhaven City Council. But the original developers plan envisaged that within that larger area, the subject site and part of the beach would be a yacht club with a small piece of public reserve on the north side to give public access to Wowly Creek from Monarch Place. The subdivision was refused and appealed in 1993. Before the hearing, the appeal was mediated and consent orders drawn up by agreement between the council and the then owner. The Court granted the consent orders for the subdivision. 13 In 1994 the area of zone 3(g) land was reduced by council to be only the subject site with the small piece at the northern end zoned 7(f1) Public Reserve. Also in the re-zoning some of the existing foreshore reserves to Wowly Creek and Jervis Bay beach front that had been dedicated by the then owner were also zoned as Reserve. The Yacht Club site retained some land including some of the beach front at that time to give access to water. 14 In 2001 an application for a sailing club and 16 tourist accommodation units was refused by the council and then appealed to the Court. During the proceedings that application was amended to remove the club house and dedicate additional foreshore reserve land on the beach front and to provide the existing mixture of 6 townhouses as permanent residential occupancies and 9 apartments as short term tourist accommodation with 1 apartment as a manager's flat permanent occupancy. 15 In the last approval the extent of additional foreshore reserve dedication was 3655 sq m and the subject site was left with 4330 sq m. 16 The issues in the appeal are: 1. Non-compliance with cl 17 of Jervis Bay Regional Environmental Plan 1996. 1.1 The proposal is not consistent with the instrument in that it does not contribute to the variety of accommodation for tourist visitors. The deletion of the requirement to provide a specified number of units for tourist accommodation necessarily derogates from the intent of the instrument. 2. Non-compliance with DCP 71 (Medium Density Code). 2.1 The proposal does not comply with the site density performance criteria specified in the DCP which requires for a development of this scale to have a minimum site area of 5,180 sq m. The site has an available area of 4,330 sq m. 2.2 The proposal does not comply with the landscape design performance criteria specified in the DCP which requires a total landscaped area of 1,880 sq m. The existing development has a total landscaped of 1,724 sq m. 3. Public Interest 3.1 This development should not be approved because it proposes to convert the existing development from a mixed use development to a wholly medium density residential development. Having regard to the circumstances of the case, approval would be contrary to the objectives of the 3(g) zone. 17 The respondent's evidence was heard from: o Mrs D. Krome, the president of the Callala Bay Progress Association. o Ms T. Brealey, local resident and member of the Progress Association. o Mr G. A. Debnam, consultant town planner.