Land and Environment Court of New South Wales CITATION : Moduplex v Tweed Shire Council [2008] NSWLEC 1455 APPLICANT Moduplex Pty Limited PARTIES : RESPONDENT Tweed Shire Council FILE NUMBER(S) : 10628 of 2008 CORAM: Brown C KEY ISSUES: Development Application :- Consent Orders - resident objectors - height - bulk/scale - excavation - view loss - access via unmade lane - safety - overlooking LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 20/10/08 EX TEMPORE JUDGMENT DATE : 20 October 2008 APPLICANT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 20 October 2008 10628 of 2008 Moduplex Pty Limited v Tweed Shire Council JUDGMENT 1 COMMISSIONER: This matter comes before the Court for Consent Orders in relation to DA 06/0946 for the construction of a mixed residential and commercial development at 20 Marine Parade Kingscliff. The site is located within Zone 3(b) - General Business under Tweed Local Environmental Plan 2000 (LEP 2000) and the proposed use is permissible with consent within this zone. 2 With the agreement of the parties, the hearing was conducted on site and the judgement reflects findings given on-site on 20 October 2008. 3 In accordance with the Practice Note – Class 1 Appeals (par 36) an opportunity is provided for any person who objected to the proposed development to be heard in the Courts consideration of the Consent Orders. The following people provided evidence: o Mrs E Whittle of 22 Marine Parade, o Mr P Eldred, the son in law of Mrs E Whittle, o Ms R Coulson, the daughter of Mrs E Whittle, o Mr I Whittle, the son of Mrs E Whittle, o Mr J Hanisch, town planner on behalf of Mr I Whittle, o Mr J Black of 18 Marine Parade, o Mr J Outridge of 12 Marine Parade, o Mr G Palmer of 10 Marine Parade, o Mr T Eady of 14B Marine Parade, and o Ms J Murray 30/183 Marine Parade. 4 Their concerns related to one or more of the following: o the breach of the storey/height requirement, o unacceptable bulk and scale, o excessive excavation, o the use of an unmade lane for access, o loss of privacy and overlooking, o loss of views, o the width of the proposed stairs and pedestrian safety, and o the lack of car parking. 5 Breach of the storey/height requirement – Clause 16 of LEP 2000 provides for a maximum 3-storey limit. There was agreement that the proposed development exceeded the 3-storey limit and in response the applicant provided an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to show why strict compliance with the standard was unreasonable and unnecessary in this case. The extent of the breach was shown on a plan. The area that exceeded the 3-storey height is limited to the central part of the site and occupies a vertical width of some 2.5 m on the south-east elevation and a vertical width of some 6.4 m on the north-west elevation. 6 The site rises steeply towards the rear and the design of the building responds by providing a considerable proportion of its floor space on the lower and flatter part of the site thereby allowing the expansive views of the Pacific Ocean to be retained over the proposed building for the residential dwellings at the rear. The area of non-compliance creates no unacceptable amenity impact on any adjoining properties. I have reviewed the SEPP 1 objection and I am satisfied that strict compliance with the development standard is unreasonable and unnecessary in this case and that the objection is well founded. 7 Unacceptable bulk and scale - I am satisfied that the form of the proposed development is consistent with that anticipated by the councils planning controls. The proposed development seeks variations to the councils planning controls for height, setbacks and building envelope however these variations are directly responsive to the topography of the site and the need to minimise impacts on the adjoining residential properties, particularly those at the rear of the site. The variations, in my view, are not significant and do not add to the bulk and scale of the building in any meaningful way. 8 It also must be remembered that the site has a commercial zoning. Even though the site adjoins a residential zoning it would be unreasonable to expect the proposed development to have a form and appearance of a residential building given its commercial zoning. The south-east elevation that adjoins the residential zone has an acceptable setback, largely through the existing unmade lane, and a well articulated and interesting elevation. 9 Excessive excavation - excavation is required to a maximum depth of some 14 m. This excavation is located 200 mm of the rear property boundary and in close proximity to the house owned by Mrs Whittle. The draft conditions of consent provide conditions that required further details to be submitted for the excavation and the retention of the cut. 10 Due to the depth of the cut, proximity to the rear boundary and the adjoining dwelling, the applicant was requested to consider whether the details of the excavation and the retention of cut were more appropriately provided as a deferred commencement condition. The applicant accepted this approach and directions were made for the filing and serving of amended conditions of consent to reflect this change. Prior to the hearing it was agreed between the parties that additional conditions are to be provided for dilapidation reports prior to any excavation. 11 The use of an unmade lane for access- access to the basement car park is provided along part of an existing unmade lane. It is currently used for pedestrian access between Marine Parade and Sutherland Street. The council was of the view that the use of this part of the unmade lane was a more appropriate means of access to the development rather than directly from Marine Parade for traffic safety reasons. There is no legal impediment to the use of the lane and it would not be a reason to deny the Consent Orders given that the council supports its use. 12 The ability to turn from the lane into the car lift that accesses the basement car park was raised by number of residents however I was advised that the turning movements could be undertaken safely based on the use of the RTA turning path templates for an 85th percentile vehicle. 13 Pursuant to s 39(2) of the Land and Environment Court Act 1979, the Court has all the functions and discretions of the council for the purpose of hearing or disposing of the appeal. Given the Consent Orders, it is clear that the council, as owner of the adjoining road reserve (the unmade lane), consented to the making the development application. To put the matter beyond doubt, and pursuant to s 39(2) and by consent of the parties, I exercise the power of the Court to consent to the making of the application. 14 Loss of privacy and overlooking - with the benefit of the view of nearby adjoining residential properties and an understanding of the proposed development, I am satisfied that there is sufficient separation distances to minimise any loss of privacy or overlooking to an acceptable level. 15 Loss of views - some height poles were placed on the site to give an indication of the location and extent of the proposed building form. When viewed from adjoining properties an understanding could be made of the impact of the development on views from these adjoining properties. With the benefit of the height poles, I am satisfied that there are no unacceptable impacts on views given that the design attempts to minimise view loss from adjoining properties through the placement of floor space at the lower part of the site and the principles of view sharing. 16 The width of the proposed stairs and potential pedestrian safety -as part of the use of the unmade land for access to the proposed development, the applicant proposes to replace part of the existing stairs with new stairs that are compliant with the Building Code of Australia. Joint use of that part of the unmade lane by pedestrians and vehicles is proposed where access is provided to the proposed building. There was general agreement that some minor amendments could be made to the configuration of the stairs and the area used by both pedestrians and vehicles to provide increased safety for pedestrians. The applicant accepted that amendments could be made and directions were made for the plans to reflect this change. 17 The lack of car parking - the proposed development provides sufficient car parking for the residential component of the proposed development in the basement car park. A s 94 contribution is proposed to be provided for the commercial component of the proposed development. This is consistent with the requirements of the council's s 94 Contribution Plan and as such cannot be the basis for the refusal or amendment of the application. 18 There being no reason why the Court should not endorse the Consent Orders, the Orders of the Court, by consent, are: 1. The Appeal is upheld. 2. Development Application DA06/0946 for a mixed development comprising two (2) x two (2) bedroom units, two (2) x three (3) bedroom units and commercial premises on the land known as Lot 3 in Deposited Plan 520276, No.20 Marine Parade, Kingscliff, is approved subject to the conditions in Annexure A. 3. There be no order as to costs. 4. The exhibits are returned with the exception of exhibits 1 and A. _____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.