Waterfront Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 573

Land and Environment Court of New South Wales

CITATION : Waterfront Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 573 APPLICANT Waterfront Developments Pty Limited PARTIES : RESPONDENT Wyong Shire Council . FILE NUMBER(S) : 10523 of 2004 CORAM: Moore C KEY ISSUES: Development Application :- Environmental Planning and Assessment Act 1979 State Environmental Planning Policy 1 LEGISLATION CITED: Wyong Local Environment Plan 1991 Development Control Plan 60 - The Entrance Development Control Plan 61 - Parking . Harb v Wyong Shire Council [2004] NSWLEC 568; CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140; . DATES OF HEARING: 22 July, 19 August, 13, 14 and 15 October 2004 DATE OF JUDGMENT: 11/25/2004

APPLICANT Ms M-L Taylor, solicitor Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Moore C

25 November 2004

03/10523 Waterfront Investments Pty Limited v Wyong Shire Council

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.