Land and Environment Court New South Wales Medium Neutral Citation: Nankivell v Tweed Shire Council [2015] NSWLEC 1125 Hearing dates: 13-14 April 2015 Decision date: 28 April 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: Dwelling houses; subdivision; compliance with development standard; impact on adjoining properties; bulk, scale and character Legislation Cited: Tweed Local Environmental Plan 2000; Tweed Local Environmental Plan 2014; Rural Fires Act 1997; North Coast Regional Environmental Plan; State Environmental Planning Policy No. 1 – Development Standards; State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 24; Wehbe v Pittwater Council [2007] NSWLEC 827 Texts Cited: Tweed Shire Development Control Plan 2008 Category: Principal judgment Parties: Robert Nankivell (Applicant) Tweed Shire Council (Respondent) Representation: Solicitors: Mr C Gough, Storey & Gough Lawyers (Applicant) Ms P Hudson & Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10680 of 2014 Judgment 1. Mr Nankivell lodged Development Application DA13/0654 with Tweed Shire Council on 12 November 2013 seeking consent to demolish an existing dwelling house, two lot subdivision and the erection of a dwelling house and swimming pool on each of the two lots as a staged development at No 40 Queen Street, Fingal Head. The council refused consent on 11 August 2014 and Nankivell is appealing that decision. 2. The council does not oppose the subdivision or the dwelling on proposed lot 1 however does contend the impacts of the dwelling on lot 2 would be unacceptable and not compliant with a development standard that relates to overshadowing. The site and the locality 1. The site is located on the eastern side of Queen Street, Fingal Head and has a frontage of 25.146m, depth of 40.235m and site area of 1011.75sqm. The site falls from the rear to the street with a fall of approximately 5m. 2. It adjoins a Crown Reserve to the east. That reserve runs along the coast between the residential area of Fingal Head and the beach and also provides pedestrian access to the beach and Fingal Lighthouse. The reserve falls in the opposite direction towards the beach and contains remnant vegetation which is representative of an Endangered Ecological Community (EEC), a Littoral Rainforest. That reserve is identified as being fire prone under the council's bushfire mapping. 3. The site contains an existing two storey dwelling house, part of which is erected over the Crown Reserve. It is devoid of vegetation apart from a number of frangipani trees and shrubs along the side boundaries. These would be removed to provide for the dwelling construction. 4. Development within the vicinity of the site comprises detached dwelling houses ranging from older style single storey fisherman's cottages to newer two storey dwellings. The setbacks of these dwellings vary along Queen Street and also throughout the Fingal Head village. Lots along the eastern side of Queen Street were originally of similar width to the site however a number have been subdivided into two lots, the majority of which have divided the site in a similar configuration to that proposed. The development to the immediate south of the site has a north/south boundary with the dwelling to the east fronting Lighthouse Parade and the western dwelling fronting both that street and Queen Street. Background and the proposal 1. The proposal seeks consent for the demolition of the existing dwelling, a two lot subdivision and erection of dwellings on each of the two lots. The application was lodged as a staged development with the staging as follows: 1. Subdivision of the site into two equal allotments, demolition of the existing dwelling, vegetation removal and associated compensatory planting, water/sewer connections. 2. Construction of a two storey dwelling on proposed Lot 2. 3. Construction of a two storey dwelling on proposed Lot 1. 1. Each lot would be of equal size (505.85sqm) with a frontage of 12.573m to Queen Street and identical rear boundary to the reserve. 2. Demolition of the existing dwelling house would remove the encroachments from the reserve and provide for the regeneration of approximately 140sqm of rainforest. Agreed consent conditions require the preparation of a Habitat Restoration Plan (HRP) and carrying out of works including maintenance, monitoring and reporting for a period of at least five years to ensure rehabilitation of the area. 3. The dwelling on proposed Lot 1, the northern allotment would be constructed 1.5m from the northern and between 900mm and 1.5m from the proposed new lot boundary with Lot 2. The double carport would be setback 5.5m from Queen Street and the front wall of the main dwelling constructed on a building line of 6.295m. In addition to the carport, the ground floor contains three bedrooms, ensuite, bathroom, entry, laundry, store and rumpus room. At the rear is a terrace and pool. The pool partly encroaches the 11m bushfire setback however the whole of the dwelling and terrace is outside that setback. 4. The first floor is setback 1.5m from both side boundaries and contains an open plan living/dining/kitchen area, study, bathroom and front and rear screened deck. The first floor is setback 6.91m from Queen Street and aligns to the rear ground floor walls. 5. The site coverage is 34.6%, gross floor area (GFA) 206.8sqm, floor space ratio (FSR) 0.41:1 and landscaped area of 290.51sqm with two 3m x 3m deep soil areas nominated in the north eastern corner of the rear yard. 6. Whilst a slightly smaller dwelling in terms of floor space, the Lot 2 dwelling occupies a greater portion of the site with 43.3% site coverage, GFA of 198.2sqm, FSR of 0.395:1 and landscaped area of 191.1sqm. that dwelling steps up the site with the lower level comprising a double carport setback 6.204m from Queen Street and entry, store and services area behind. That portion of the dwelling is constructed 2.622m from the northern and 1.5m from the southern boundaries. 7. The main living level extends over the carport to within 4.504m of the front boundary, 1.5m from both side boundaries and 11m from the rear, coinciding with the required bushfire setback to the reserve. Two bedrooms, bathroom, open plan living/dining/kitchen area, laundry, rumpus and two decks, one towards the centre of the dwelling on its northern side that contains a spa and one to the rear, are located at that level. 8. The master bedroom and ensuite are located at the rear, upper level to the 11m setback from the rear boundary. The planning controls 1. At the time the application was lodged, the site was zoned 2(a) Low Density Residential under Tweed Local Environmental Plan 2000 (LEP2000). Tweed Local Environmental Plan 2014 (LEP2014) took effect on 4 April 2014 and includes clause 1.8A Savings provision relating to development applications which is in the following form: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 1. Accordingly, LEP2000 is the relevant planning instrument against which the application is to be assessed however, as LEP2014 is imminent and certain weight can be given to its provisions. 2. Clause 4 of LEP2000 contains the aims of the plan and clause 8 details consent considerations. Those relevant to the application are as follows: The consent authority may grant consent to development (other than development specified in Item 3 of the Table to clause 11) only if: (a) it is satisfied that the development is consistent with the primary objective of the zone within which it is located, and (b) it has considered those other aims and objectives of this plan that are relevant to the development, and (c) it is satisfied that the development would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of Tweed as a whole. 1. The primary objective of the 2(a) zone as relevant to the site is: • to provide for and maintain a low density residential environment with a predominantly detached housing character and amenity. 1. Secondary objectives of the zone are: • to allow some diversity of housing types provided it achieves good urban design outcomes and the density, scale and height is compatible with the primary objective. • to allow for non-residential development that is domestically based, or services the local needs of the community, and does not detract from the primary objective of the zone. 1. Subdivision and dwelling houses are permissible with consent provided each lot has a site area of at least 450sqm. The proposed lots comply with that control, each being some 55sqm larger than required. 2. The reserve that adjoins the rear of the site is zoned 6(a) Open Space. Environmental facility is permitted without consent in that zone and includes environmental management and restoration facilities such as bush restoration, swamp restoration, erosion and run off prevention works, dune restoration or the like. 3. Clause 16 of LEP2000 contains development standards for building height with a maximum height of two storeys. 4. Clause 39A provides for consideration of Bushfire Protection and the Rural Fire Service has issued a bush fire safety authority under section 100B of the Rural Fires Act 1997. 5. The North Coast Regional Environmental Plan (NCREP) also applied to the site when the application was lodged however LEP2014 includes a provision that states the NCREP does not apply to land to which LEP2014 applies. The effect of the making of LEP2014 is that NCREP would no longer apply to the site however would be saved by virtue of clause 1.8A as it relates to the application. 6. Clause 2 of NCREP provides the aims of the plan, clause 2B(2) requires a consent authority to take into consideration such of the aims and objectives of the plan as are relevant to the making of its determination. Division 2 applies to Coastal development with clause 30 containing the objectives of that division in relation to coastal planning as follows: (a) to enhance the visual quality of the coastal environment, (b) to provide for the appropriate recreational use of beaches, (c) to protect the water quality of the coastal environment, (d) to minimise risks to people and property resulting from coastal processes, (e) to minimise changes to coastal processes resulting from development, and (f) to encourage retention of natural areas and regeneration of those natural areas which are already degraded. 1. Clause 32B(4) applies to development control on coastal lands and is in the following form: (4) The council must not consent to the carrying out of development: (a) on urban land at Tweed Heads, Kingscliff, Byron Bay, Ballina, Coffs Harbour or Port Macquarie, if carrying out the development would result in beaches or adjacent open space being overshadowed before 3pm midwinter (standard time) or 6.30pm midsummer (daylight saving time), or (b) elsewhere in the region, if carrying out the development would result in beaches or waterfront open space being overshadowed before 3pm midwinter (standard time) or 7pm midsummer (daylight saving time). 1. The parties agree that the provisions of clause 32B(4)(b) apply to the site and that it is a development standard. The applicant relies on an objection to that standard lodged under the provisions of State Environmental Planning Policy No. 1 – Development Standards (SEPP1) as the proposed dwelling on Lot 2 would overshadow the adjoining reserve before 7pm midsummer. 2. Under LEP2014, the site is now zoned R2 Low Density Residential and the development remains permissible with consent. Applicable development standards would be building height (maximum 9m) and FSR (maximum 0.8:1). Clause 5.5 applies to development within a coastal zone and contains objectives in subclause (1), matters for consideration in subclause (2) and satisfaction of matters in subclause (3). There is no development standard in relation to overshadowing of the adjoining reserve that corresponds to the provisions of clause 30 of the NCREP. The relevant considerations are now at 5.5(2)(c) and (e) as follows: (c) the impact of the proposed development on the amenity of the coastal foreshore including: (i) any significant overshadowing of the coastal foreshore, and (ii) any loss of views from a public place to the coastal foreshore, and…. (e) how biodiversity and ecosystems, including: (i) native coastal vegetation and existing wildlife corridors, and (ii) rock platforms, and (iii) water quality of coastal waterbodies, and (iv) native fauna and native flora, and their habitats, can be conserved, and 1. Tweed Shire Development Control Plan 2008 (DCP) applies to the site with the provisions of Part A applicable as there are no specific controls that apply to Fingal Head as distinct from those areas to which the provisions of Part B apply. The main controls that relate to the contentions in the case are those that relate to setbacks, solar access and bulk and scale. The issues 1. The contentions in the case are detailed in the Amended Statement of Facts and Contentions (Exhibit 2) however the parties agree that issues central to the case are the impact of Dwelling 2 on the adjoining reserve, the bulk/scale/height of Dwelling 2 and the consequential impacts on the Desired Future Character (DFC) of the area and the impact of Dwelling 2 on the adjoining property to the south, No 42 Queen Street. The evidence 1. The hearing commenced on site with a number of local residents making submissions to the Court, some in favour of the development and others opposed. The following is a summary of the issues raised: * Development is contrary to the village character of Fingal Head, listed by the National Trust as the Fingal Head Coastal Conservation Area; * Local community association has worked to ensure the integrity of the coastal environment is maintained; * Development exceeds two storey height limit; * Development is excessive in terms of bulk and scale and would establish a precedent for future development in the area; * Overshadows the adjoining reserve in the hours prescribed in the NCREP, concerned about the impact of that shadowing on the EEC; * Overshadowing of adjoining residential property, particularly main private open space area and winter verandah of proposed new dwelling to be constructed on adjoining land; * Dwelling 2 would significantly impact on the use of adjoining private open space that is used for drying clothes, growing vegetables and recreation; * Loss of sea breezes; * Fingal Head is not undergoing urban renewal, it is a fishing village and important cultural place; * Setbacks are inadequate; * EEC removed from the site so there has already been an adverse impact on that community which is maintained by an award winning coastcare group; * Owner will want trees removed from the reserve as they may drop leaves; * Development is consistent with that envisaged for the area, no different to other development being built in the area, will upgrade the area; * Development supported in the form proposed and will add families to the area; 1. Expert ecology evidence was heard from Mr P Parker for the applicant and Dr B Stewart for the council. They agree that the shadowing of the reserve will have an impact on the EEC however do not agree on the extent of that impact. During the hearing, amended shadow diagrams were prepared that properly reflect the shadowing in terms of slope of the reserve. Those diagrams show that Dwelling 2 would start to shadow the reserve at 5.50pm on 22 December. At that time the reserve is currently overshadowed by the existing dwelling, that dwelling starting to shadow the reserve at 1.15pm. 2. The shadow diagrams also model the impact of the embankment on shadowing and the extent of shadow that arises from proposed dwelling 2 compared to the current situation with the existing dwelling. At 7pm, the impact of proposed dwelling 2, disregarding any boundary fence and the shadow cast by the embankment, is an area of 107.2sqm. The existing dwelling shadows an area of 431.8sqm. 3. Dr Stewart says that the impact of a shadow cast by a building would differ from that cast by tree canopies but could not predict the precise nature of that impact. She says that it is likely different species may grow however those species would form part of the EEC. Mr Parker says that based on a view of the existing site conditions, it is not possible to determine any difference between those areas that are overshadowed by structures and those that are shadowed by tree canopies. He notes the existence of the large nursery structure within the reserve and that the vegetation condition varies throughout, which he attributes to its management. Dr Stewart agrees. 4. Whereas Mr Parker says overshadowing is unlikely to be a significant factor in plant regeneration or growth, Dr Stewart says that is will affect plant regeneration and growth of ground storey vegetation however the areal extent and the period of time of shadowing is very small. The impacts, whilst long term, may or may not be negative and are unlikely to be of consequence given the small scale of the impact. Dr Stewart says that the development would not stop conservation of the area in the sense of allowing the community to persist. Mr Parker agrees. 5. Mr Parker says the demolition of the existing dwelling will allow for the restoration of some 140sqm of littoral rainforest within the Crown Reserve and will contribute to the visual amenity of the reserve. Dr Stewart says the development will remove an existing incursion and potential impacts of the demolition need to be managed. She had reviewed the draft condition that calls for a Vegetation Management Plan (VMP) and says that the restoration of the area can be managed so there is no impact providing proper oversight is ensured. 6. The experts agree that the littoral rainforest is a community that is less prone to impacts from overshadowing than other EECs. Mr Parker says the development provides for the demolition of a building that encroaches the reserve and replanting with species sympathetic to those currently growing in that reserve. This planting will increase the biodiversity of the Crown reserve by eliminating the direct impact of the existing dwelling and reducing its edge effects, enhancing the local wildlife corridor and increasing the area of flora habitat. Dr Stewart says that the proposed development will impact upon native coastal vegetation, existing wildlife corridors, flora and their habitats however the impacts are very small, assuming protection of the adjacent vegetation during demolition can be achieved through the proposed condition. The impact on local biodiversity/ecosystems is, however, not likely to be of a nature or scale that would be unacceptable. 7. Town planning evidence was provided by Mr A Smith for the applicant and Mr S Layman for the council. They agree that the site is capable of accommodating a low density residential outcome commensurate with the zoning of the land and the character of the surrounding development however disagree whether the development is appropriate for the site. 8. As Mr Seton, for the council, submits, the council does not oppose the subdivision or the dwelling proposed on Lot 1, the consideration of the application will focus on proposed dwelling 2. 9. Mr Layman considers the bulk, scale and siting of the proposed dwelling on Lot 2 is inappropriate and inconsistent with the council's planning controls. He also considers that there was a particular point where the dwelling was three storeys in height and that was at the location where the western wall of the master bedroom bisects the living area and the 1.5m undercroft. Whilst not a contention in the case, and the fact that the plans indicate the undercroft height is on the maximum permitted under the LEP2000 definition of storey, Mr Layman did not accept the plans as accurate having reference to the survey plan. To remove any doubt, Mr Gough, for the applicant, proposed a condition of consent that would reduce the height of the building by 350mm and ensure that no undercroft area would exceed 1.5m in height. The imposition of that condition (proposed condition 2A) would ensure compliance with the storey control and also reduce the extent of overshadowing. 10. Mr Layman has no issue with the subdivision as proposed and accepts that, subject to the reduced height, the development complies with the LEP2000 and LEP2014 height controls, the FSR development standard, the DCP control for landscaped area, the rear and side setback controls and the site coverage control. He says the existing dwelling detracts from the visual amenity of the area and its removal would leave this area for open space use and has the potential to allow regeneration of the area. 11. Mr Smith prepared the SEPP1 objection (Exhibit D) and considers the tests of Lloyd J in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 24 and Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 and concludes the application of the development standard for overshadowing of the reserve is unreasonable and unnecessary in the circumstances of the case because the objectives of the standard are met. 12. The experts agree that there are no prescribed objectives for the development standard and reference the objectives of the Division as set out in clause 30 of the NCREP as being the relevant objectives against which to measure the performance of the development and those relevant to the application are (a) and (f), that is to enhance the visual quality of the coastal environment and to encourage retention of natural areas and regeneration of those natural areas which are already degraded. 13. Mr Smith relies on the evidence of the ecologists that the area is capable of regeneration and this will occur if the VMP is appropriately managed. He says the setbacks of the dwellings considerably exceed the 6m minimum allowed under the DCP with the height of the building at the rear also 6m minimising the impact of overshadowing on the reserve. Because the existing structure will be removed from the reserve and the area regenerated the proposal will enhance the visual quality of the coastal environment and because the overshadowing impact will be reduced from that existing it will not result in any shadow being cast prior to 5.50pm midsummer. Therefore, it will encourage retention of natural areas and regeneration of those natural areas which are already degraded. 14. Mr Layman says that no regard should be had to the alternative of retaining the existing dwelling and that the overshadowing of the reserve could be avoided or significantly reduced by an alternate proposal. He agrees that the removal of the dwelling would enhance the reserve by allowing the possible reinstatement/regeneration of suitable vegetation, however, to meet the objective requires much closer consistency with the development control and does not minimise overshadowing. 15. In terms of bulk, scale, built form and character in context, Mr Smith says the proposed dwellings are consistent with both the established and DFC for the locality and therefore comply with the requirements of clause 1.4 of the DCP. He notes there are no specific place controls relating to Fingal Head and therefore the more general controls in Part A1 of the DCP prevail. He says the proposal demonstrates compliance with those controls, in particular the site coverage at 34.6% and 43.3% is less than the 50% allowed; the maximum building height is at least 1.2m lower than permitted by council for the area and the FSR at 0.395:1 and 0.41:1 is considerably less than the 0.8:1 provided under the controls. The resultant buildings are considerably smaller than that which could be built on the land and also smaller with recent dwellings approved and constructed in the locality. He cites the recent approval granted by the council for the adjoining site, No 42 Queen Street (No42) and says that provides for a site coverage of 53%. This was disputed during the hearing and the approved plans were provided (Exhibit 9). Those plans indicate a site coverage of 34% however for some reason that figure excludes verandahs. Including verandahs, the site coverage would be approximately 50%. 16. Mr Layman says the streetscape of dwelling 2 is consistent with that of a two storey dwelling however the design of the first floor, by locating the master bedroom at the very rear of the site creates unnecessary and avoidable overshadowing of the reserve and could be reduced by siting the first floor further away from the boundary of the reserve however this would create three storeys because of the high understorey component of the design. He considers the design of the dwelling to be fundamentally flawed. 17. Mr Layman says the proposed 4.504m setback of dwelling 2 to Queen Street is inconsistent with adjoining development and the streetscape of Queen Street and relies on the 1.6m side setback of No 42 which has a primary frontage to Lighthouse Parade. He says it is not appropriate to use the side setback of a corner site to determine the front setback in this case when the controls require that "in established areas and on infill sites dwelling houses are to be consistent with the front setback distance of neighbouring buildings and are to be the average of neighbouring dwellings within 40 metres or a variation justified under a streetscape analysis". He says the proposed setbacks exacerbate the impression of bulk when viewed from the street and a minimum setback of 6m should be provided. 18. Mr Smith undertook a streetscape analysis (Exhibit G) and considers the design of the dwellings is consistent with that which occurs along Queen Street and other parts of Fingal Head which provides for a range of setbacks. He says that the 6m setback of the two dwelling to the north of the site and the existing 1.8m setback of No 42 which would increase to 2m along Queen Street if the consent is taken up set the basis on which to assess the immediate streetscape. He says No 42 establishes the streetscape character when entering the street and the proposed setbacks provide an appropriate transition between the corner property and those to the north, consistent with the DCP requirement to average the setbacks. 19. The experts disagree on whether Control C4 of the Solar Access and natural ventilation provision in clause 4.3 of the DCP are met. That requires for neighbouring properties that sunlight to at least 50% of the principle area of private open space of adjacent properties is not reduced to less than 2 hours between 9am and 3pm and windows to living areas must receive at least 3 hours of sunlight between 9am and 3pm on June 21. The experts disagree as to the area against which the principle area of private open space of the adjoining residence would apply. There is no definition of that space contained in the DCP. Mr Smith adopts the definition contained in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as follows: Principle private open space means an area that: (a) is directly accessible from, and adjacent to, a habitable room, other than a bedroom, and (b) is at least 3m wide, and (c) is not steeper than 1:50 gradient. 1. Applying this definition to the approved plans for No 42, Mr Smith says the principle private open space is an area comprising the north oriented winter verandah and the immediately adjoining terrace area but excludes the area which comprises the easement, the water tanks and those areas directly accessible from the bedroom. He concludes that the area would be 36sqm and would receive 50% or more sunlight access at 9am, 10am, 11am and 12 noon midwinter, therefore satisfying the provisions of clause 4.3(C4) of the DCP and would be further improved through the reduction in height of the dwelling by the 350mm proposed by condition 2A. 2. Mr Layman says the area relevant to consideration is the entire area to the north of the proposed dwelling, which has a width of 5.5m. He does not make any allowance for the verandah off the living areas and concludes that the control is not met as at 10am over 50% of the area would be in shadow and this continues to be the case until 3pm. Conclusion and findings 1. For consent to be granted, I must be satisfied that the objection to the development standard for overshadowing of the Crown Reserve is well founded. This is a precondition to consent being granted. As set out in Wehbe there are three steps that must be satisfied under SEPP1. The first is that the objection is well founded, the second that the Court must be of the opinion that granting of consent to the application is consistent with the aims of the policy and the third, satisfaction that consideration of the matters in cl 8(a) and (b) of the policy justify the upholding of the objection. 2. The most common way of determining whether an objection is well founded and consistent with the aims of the policy is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. 3. It is important to note that the standard applies to all beaches and waterfront open space (other than those areas specified in subclause (a)) to which the provisions of the NCREP apply. Those areas vary from sandy beaches to grassed parklands to natural areas such as the littoral rainforest that adjoins the site. Accordingly, determination of the precise objective of the control would vary in particular circumstances. It may, as submitted by Mr Seton, to be ensure that beaches and recreation areas are not overshadowed to allow maximum use of these areas during daylight hours. It may also to be to ensure that important vegetation can thrive and ensure proper environmental outcomes for the coastal areas. 4. In this case, I consider that the objective of the standard would be more likely to ensure that natural areas are retained and regenerated. That is because the existing tree canopy of the EEC contributes to substantial shading of the reserve. Having regard to the evidence of the ecologists, I am satisfied that the Littoral Rainforest is one that is not reliant of full sunshine until 7pm on 21 December to ensure its viability . Nor will and impacts of the shadow cast by proposed dwelling 2 between 5.50pm and 7pm result in the failure of any regeneration that may occur when the dwelling is demolished and the area replanted. The extent of shadow would not prevent any likely passive use of the area. The revegetation will enhance the visual quality of that particular coastal environment. The impacts have been assessed by each expert and whilst there is some disagreement between them, they do agree that if there is an impact, it would not be of a nature or scale that would be unacceptable. 5. For these reasons, I consider the objectives of the development standard are met and the objection is well founded. 6. I must also assess whether the application is consistent with the aims of SEPP1. Those aims are set out in clause 3 of the policy as follows: This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act. 1. For the reasons set out above, I do not consider that there is any reason to require strict compliance with the development standard. That is because there is no evidence that any adverse impacts will arise from the overshadowing of the small area of open space by proposed dwelling 2 from 5.50pm to 7pm midsummer. For that reason I consider that it would be unreasonable and unnecessary to require compliance with the standard. 2. The objects specified in s5 (a) (i) and (ii) of the Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, 1. I am satisfied that the development proposed, subject to the proposed conditions, will encourage the proper management, development and conservation of the littoral rainforest with appropriate environmental outcomes and also promote the orderly and economic use and development of the land. 2. Lastly, I must have regard to those matters the Director General would consider if granting concurrence to vary the particular standard. I am satisfied that the extent of non-compliance with the development standard does not raise any matter of significance for State or regional environmental planning, and that in the circumstances of the case, there is no the public benefit of maintaining the planning controls adopted by the NCREP. 3. For these reasons, I am satisfied that it is appropriate to flexibly apply the development standard and uphold the objection to the provisions of clause 32B(4) of the NCREP. 4. It is now necessary for me to conduct a merit assessment of the application and in particular those matters in contention. That requires an assessment of the suitability of proposed dwelling 2 in terms of its bulk, scale, siting and design and how it fits within the existing and DFC of Fingal Heads. Secondly, it requires an assessment of the impact of the dwelling on solar access to No 42. I must also have regard to those matters prescribed in LEP2000. 5. Having regard to the evidence and in particular the fact that the dwellings as proposed on the site are considerably less in terms of scale than that envisaged under the LEP and DCP controls, I do not consider that the dwellings are excessive in terms of bulk, scale or height. The dwelling, whilst larger than the older style dwellings within Fingal Head, are not uncharacteristic of the scale of development contemplated by the planning controls. Having regard to LEP2000 and also the development standards that now apply under LEP2014, it is apparent that there will be a change in the nature and scale of development in the area as sites are eventually redeveloped. 6. The DFC of Fingal Head has not been specifically defined as a special character area as has occurred in some areas within the Tweed Shire and are detailed in Part B of the DCP. The DFC is therefore determined through the range of development standards that apply in the local environmental plans and the controls contained within the DCP. Those controls envisage two storey and up to 9m building height, FSR of 0.8:1, site coverage up to 50% and side boundary setbacks of between 900mm and 1.5m depending on building height. Each dwelling proposed is significantly less than what those controls provide for. For these reasons, I find the bulk, scale and height of the proposed dwellings to be acceptable. 7. In terms of streetscape, I accept the evidence of Mr Smith and agree that the proposed setbacks respond to the Queen Street streetscape. There is no consistent building alignment and there are instances of dwellings built very close to the street with others setback towards the rear of the site to take advantage of any views that may be available. This inconsistent character requires an assessment of whether the particular setbacks proposed are consistent with the adjoining development or provide an appropriate transition between that built form. 8. No 42 Queen Street plays an important role in that assessment, particularly due to its prominence on a corner. Whether that dwelling and the dwelling subject to a consent front Queen Street or Lighthouse Parade is an irrelevant consideration and setbacks of only 1.8m and 300mm currently apply and, if the approved development is constructed those setbacks would be 2m and 3.3m to each road respectively. All of those setbacks are considerably less than the 6m advocated by Mr Layman as being appropriate for the site. 9. The proposed setback of dwelling 2, at 4.504m and dwelling 1, at 5.5m, provides an appropriate transition between No 42 and the dwellings to the north of the site that are erected on an approximate setback of 6m. I see no reason for an abrupt change from the location of the dwelling at No 42 to the site of proposed dwelling 2. 10. Whilst the proposed reduction in height of the dwelling will improve the amount of solar access available to No 42, I accept that the controls contained in the DCP as they apply to the open space will not be met if the area to be assessed is the whole of the area to the north of the proposed dwelling house and excludes the verandah area. There is no contention that the dwelling house will not receive the solar access specified. 11. Having regard to the improvement to solar access that would result through the height reduction to dwelling 2 and the fact that the verandah is an area that will be used for passive recreation in conjunction with the yard area, I am satisfied that, despite the numerical control not being met, that the property will receive acceptable solar access and that non-compliance with the control alone would not be a reason alone to refuse consent, particularly as the impact is from that part of a building that is compliant with the council's height and setback controls. 12. In accordance with the provisions of clause 8 of LEP2000 and having regard to the evidence, I am satisfied that the development is consistent with the primary objective of the 2(a) zone as it provides for and maintains a low density residential environment through the construction of detached housing with a character that reflects that envisaged in the council's controls and provides for an acceptable level of amenity. 13. In consideration of those other aims and objectives of LEP2000 that are relevant to the application, I am satisfied that the development provides a diversity of housing types, achieves good urban design outcomes and the density, scale and height are compatible with the low density residential area and would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected or on the area of Tweed as a whole. 14. As LEP 2014 now applies to the site, its provisions are ones that I must have regard to and I am satisfied that the development would not be inconsistent with those provisions. This is particularly relevant to the permissibility of the proposed development, compliance with relevant development standards and because I am satisfied it is not contrary to any of the provisions of clause 5.5 and will not result in significant overshadowing of the adjoining reserve. 15. For these reasons, provided the height of dwelling 2 is reduced by 350mm, there is no reason why consent should not be granted. 16. The Orders of the Court are: 1. The appeal is upheld; 2. Development Application DA13/0654 for the demolition of an existing dwelling house, two lot subdivision and the erection of a dwelling house and swimming pool on each of the two lots as a staged development at No 40 Queen Street, Fingal Head is approved subject to the conditions in Annexure A; 3. The exhibits, other than exhibits A, B and 2, are returned. _______________ Sue Morris Commissioner of the Court 10680 of 2014 Morris (C) (124 KB, pdf) ********** 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. Decision last updated: 29 April 2015