Land and Environment Court New South Wales Medium Neutral Citation: Newland Developers Pty Ltd v Tweed Shire Council [2017] NSWLEC 1021 Hearing dates: 15 August 2016, 9 January 2017 Date of orders: 24 January 2017 Decision date: 24 January 2017 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION: subdivision, nomination as school site in development control plan Legislation Cited: Environmental Planning and Assessment Act 1979; Tweed Local Environmental Plan 2014; Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167 Texts Cited: Tweed Development Control Plan 2008; Category: Principal judgment Parties: Newland Developers Pty Ltd (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: Ms S Duggan (Applicant) Mr M Staunton (Respondent) Solicitors: Bolster & Co (Applicant) Maddocks Lawyers (Respondent) File Number(s): 162983/2016 Judgment 1. Newland Developers Pty Ltd (Newland) lodged Development Application No. DA 15/0422 with Tweed Shire Council on 3 June 2015 seeking consent to subdivide land known as Lot 1147 DP 1115395 into 65 lots over two stages. The council formally refused consent and issued its Notice of Determination on 13 October 2015. 2. Newland is appealing that determination pursuant to the provisions of s97(1) of the Environmental Planning and Assessment Act 1979 (EP&AAct). The site and its context 1. The site forms part of a residential area known as the Seabreeze Estate which is located to the north west of the Pottsville Village Centre and to the north of Pottsville Road. Land to the north of the estate comprises sporting fields, canefields and environment protection areas. Land to the south primarily comprises rural and forested areas. Cudgera Creek forms the northern boundary of the site. 2. Lot 1147 is located on the north western corner of Seabreeze Boulevard and Tom Merchant Drive. It has been filled to address flooding constraints in accordance with earlier consents that applied to the estate. 3. Seabreeze Estate has been developed with detached dwellings, some medium density development and a seniors living facility since the original consent was granted. According to evidence provided during the hearing consent has also been granted to establish a child care centre and indoor recreation facility opposite the site with a neighbourhood centre also planned, identified on documents issued by the applicant. A number of public reserves are located throughout the area and the estate is serviced by bus. 4. According to the council's Statement of Facts and Contentions, the site is now legally described as Lot 1540 in DP 1207462. It has an area of 5.692ha and a drainage reserve divides the site into two separate parts. 5. Land on the opposite side of Seabreeze Boulevard comprises detached housing. 6. The site is prone to bushfire, flooding and is within a sensitive coastal location. Background and the proposal 1. The first stages (Stages 1 to 14) of the Seabreeze Estate were completed under Development Consent No K99/1837 and comprised around 500 lots. On 2 June 2013, Tweed Shire Council issued Development Consent No. DA13/0577 for an 88 lot subdivision of Stages 15 to 18. 2. Under that approval Stage 18 comprised a Master Lot, being the subject site. Stages 15 to 17 are currently being developed with housing. That master lot has been identified under the council's planning controls as a potential school site. 3. The application as originally lodged proposed to subdivide Lot 1147 into 65 lots. Following lodgement of an appeal a conciliation conference was held on site and at the council and a number of the original contentions in the case were resolved. 4. The applicant sought and was granted leave to rely on amended plans and reports on 22 April 2016. Those plans now before the Court and further amended since leave was granted, Exhibit A propose the subdivision of the land into a total of 66 allotments over two stages, stages 18A and 18B. Two lots would be dedicated to the council as public reserves (lots 1814 and 1866) and one as a drainage reserve (Lot 1826) leaving a total of 63 residential allotments. 5. The subdivision also involves the creation of public roads to service those lots. The existing drainage reserve would separate proposed Lots 1801 to 1814 (stage 18A) from the remainder of the lots which would form stage 18B. The planning controls 1. The site is zoned R2 Low Density Residential under the provisions of Tweed Local Environmental Plan 2014 (LEP). The proposed development is permissible with consent. The aims of the LEP are at clause 1.2 and clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. the objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Tweed Development Control Plan 2008 (DCP) applies to the site with Sections B15 – Seabreeze Estate, Pottsville and B21 – Pottsville Locality Based Development Code (Code) particularly relevant to the case. 2. Part B15 of the DCP was originally known as Development Control Plan 38 and adopted by the council on 4 January 2000. Its provisions were consolidated into the current DCP on 12 April 2007 to satisfy legislative requirements following amendments made to the EP&AAct that stipulate only one development control plan can apply to the same land (s74C(2)). Since that time one amendment was made on 3 December 2013. 3. The aims of the section are set out in Clause B15.1.1 and those relevant to the application are: • Provide a comprehensive and integrated set of objectives, criteria and measures to cover the essential aspects of residential and non-residential development; • Provide for a neighbourhood character with centrally located shops, facilities and meeting places which offer a sense of arrival; • Provide the widest possible choice of housing and residential lot sizes in a new residential community based on integrated design of housing, access and supporting non-residential facilities; • Facilitate cost-effective residential development with a high standard of amenity, convenience, safety and environmental sustainability; • Ensure that the necessary services and community facilities infrastructure are available in an orderly and economic manner. 1. Clause B15.2.9 details the Indicative Layout for the estate and includes reference to Map 7. That map identifies the location of a potential school site. The subject site is the area of land identified in the Map as that school site. Map 7A provides further clarity and the clause notes that this map "includes the specific designation of the Potential School Site. The Potential School Site shown appears to be the only suitable location in Stage 1 of Seabreaze (sic), based on the requirement for 6ha and the Department of Educations and Communities advisory notes for new education facility sites. The potential school site is, however, severed by an existing open stormwater channel which is located within a drainage reserve vested in Tweed Shire Council. In the even that the 6ha site is required, the open drain will be relocated to the western boundary of the site at no cost to Council. Should the open drain be located to the western boundary, the open drain is required to provide the equivalent performance and function as the existing drain….." 2. Part B21 applies to the Pottsville locality including the site. The part took effect on 28 April 2010 and followed strategic planning studies undertaken by the council. It provides policy guidance in relation to a number of key strategy areas including urban structure, major retail development, the Pottsville Village Centre, residential neighbourhoods, employment, community facilities, public domain improvements, traffic and transport, open space and recreation and infrastructure. 3. The purpose of the locality based development code is detailed in Section 1 as "part of a strategic framework for guiding the future development of the Pottsville locality and represents the most detailed level of the strategic framework. The Code provides more detailed provisions to expand upon the LEP and DCP for development within the Pottsville area that will contribute to the growth and character of the Pottsville village centre and surrounding areas; protect and enhanced the public domain, and provide for future retail and employment centres as the population increases to meet the needs of the Pottsville locality area." 4. Part 3 contains key strategic planning issues including population estimates for the area with an additional 910-900 persons envisaged in the remaining Seabreeze estate, 250 at Black Rocks, between 648 and 972 at Kings Land and between 4867 and 9512 in Dunloe Park. The strategic plans that underpinned those estimates were the Far North Coast Regional Strategy and Tweed Urban and Employment Lands Release Strategy 2009 with the council determining that an additional 12,000 people would reside in Pottsville when the identified release areas were developed. 5. Stage 2 of the Seabreeze Estate (which includes the site) is one of two future release areas identified in the Code, the other being described in the evidence in the proceedings as Dunloe Park. Both are identified in Figure 2.4 of the Code. 6. In Section 3 of the Code, the need for additional educational establishments was identified as follows: The Pottsville locality is currently served by one primary school, located in Pottsville north on the Coast Road. The nearest high school is some 20km away in Kingscliff. The current primary school site is constrained and is not readily able to expand to cope with an increasing population. Both the 2001 and 2006 census highlight a significant proportion of school age children. The continuation of this trend is probable and therefore, as the population grows to exceed 10,000, there will be a very real demand for additional educational establishments. 1. The strategy for education is detailed at Part 3.4 and adopts a threshold for the provision of a primary school being 4,500 people with around 14,000 for a high school and based on those figures the council surmised that in the years to come, adequate demand for an additional primary school and the establishment of a local high school is likely to exist in Pottsville. The Code recommends an estimated 3 year lead time for the development of primary schools and 5 years for high school provision and considers options for school sites in either Seabreeze Estate, the potential future "Dunloe Park' release area and employment release areas. 2. According to evidence given during the hearing, the Dunloe Park area is in masterplanning stages. 3. The comments made in the Code in considering locations for a school conclude that "within a wider context, the peripheral location of the Dunloe Park Release Area presents it as a potentially a less desirable option compared to Seabreeze Estate, which is more centralised to the Pottsville settlement and wider school catchment which is likely to extend beyond Pottsville, predominantly to the North. The advantage of the Seabreeze location allows, generally, shorter travel distances, greater ability for multi-purpose trips and potentially an increased population catchment within walking or cycling distance." 4. However, the final conclusion is that: Based on the above desktop analysis, it is considered that the opportunities afforded to providing a school on the earmarked site (Lot 1147 DP 1115395) within Seabreeze Estate or the Dunloe Park Release Area outweighs the opportunities present within the Employment Release Area. As such, these opportunities should be explored as the priority and prime sites. In this regard, any application received by Council on Lot 1147 DP 1115395, or any master planning process for the Dunloe Park Release Area should acknowledge the sites potential for school use. Development control requirements are provided within Section 3.5 should Council receive an application over these lands which does not include the provision of a school facility. 1. Section 3.5 provides LEP considerations that would "ensure that land within the village centre is appropriately zoned for the provision of additional community facilities. Particular development controls state: DCP guidelines and controls should support community facilities and allied professional services within the village centre precinct and discouraged in other locations. Should the provision of a school not be pursued on the site previously nominated as a potential school site within the approved Seabreeze Estate Masterplan (namely Lot 1147 DP 1115395) or within the Dunloe Park Release Area, any related development application is to detail, to the satisfaction of Council, the circumstances as to why a school cannot or should not be provided on the site, with respect to, but not limited, to the following criteria: • Building and Urban Design • Siting of the school • Recreation Areas • Parking and servicing • Traffic and pedestrians • Noise generation • Landscaping Any application received is also required to address how any proposed alternative land use sought provides; 1. an appropriate use of the lands, and 2. represents a better outcome than the provision of a school. Note: Whilst Council's adopted benchmark population requirements (detailed within the C & CF Plan) and timeframe for the construction of any further schooling facilities is acknowledged, the locality not possessing a sufficient population base at present is not deemed to be adequate justification on its own to exclude the use of the site for a school. The issues 1. The council filed its Statement of Facts and Contentions on 10 June 2016 and, following further work by the applicant involving revision of plans and submission of additional reports and information to address issues raised during the conciliation conference and in those contentions, the majority of the contentions have been resolved. 2. Those are contentions related to the adequacy of buffers to agricultural lands; insufficient frontage to public parks and adequacy of information. In addition, agreed conditions of consent have been prepared to address contentions relating to proximity to the sewer pump stations, geotechnical details, provision of water and sewer services and pedestrian and cycle access to the proposed park. 3. The remaining contentions are: 1. The proposal is inconsistent with the identification of the Property as a Potential School Site in the Council's DCP; 2. Approval of the application would not be in the public interest. The evidence 1. The hearing commenced on site with evidence heard from a number of objectors to the proposal and one supporter. The issues raised are detailed in Exhibit 13 and summarised as follows: * Local community has been promised a school since 2000; * School site was advertised by developer of Seabreeze Estate as forming part of ultimate development, school also promised by local politicians; * Children in Pottsville have to travel long distances to school, particularly high school with the closest state schools at Kingscliff, Murwillumbah and Tweed Heads, Kingscliff being the closest and around 18k away; * Students have to catch buses before 7am and arrive home after 5pm, buses are crowded and students sometimes stand for over an hour; * The remoteness of schools prevents participation in after school activities unless parents drive them, associate social issues with long distance travel; * The area is to grow as a result of further release areas planned at Tanglewood, Mooball and Dunloe Park as well as additional housing being constructed in the Seabreeze Estate; * Primary schools are already overcrowded and this will flow on to high schools; * Inadequate sewer available to service the subdivision; * Developer is reneging on important promised infrastructure; * Dunloe Park not appropriate for a school, no bus services or safe arterial roads for buses; * Inadequate buffer distances from agricultural uses, cane fields create dust, smoke, ash, noise and spray drift minimum 300m buffer required to residential development and only 70m proposed; * Demographics of Pottsville include a large proportion of young children; * Site is not the best site for a school, no assessment of the impact from buses and cars dropping off students. 1. Expert evidence was heard from Mr D Anderson for the applicant and Mr S Philbrook (town planning) and Ms V Bennett (social science and planning and design) for the council. The experts disagree whether the site should remain reserved for the purposes of a school or whether subdivision into residential allotments is appropriate. 2. Ms Bennett had undertaken an assessment of the likely population increase within the Pottsville locality and includes that information in her report entitled Independent Assessment of Need for Education Land in Pottsville dated June 2016 (Exhibit 5). The conclusions made in that assessment are detailed in the Executive Summary as follows: * Based on known capacities at the current primary school facilities, further land for primary school facilities is likely to be required in the Pottsville Catchment Area over the forecast period. This land could host either a government school or a non-government school. * There is likely to be excess student demand for secondary school facilities compared to expected capacities, but the level of demand for state schools is unlikely to trip the threshold for another government secondary school. As such, no further land specifically for government secondary school facilities is recommended. * However, there is also likely to be demand for secondary non-state facilities. As such, a non-government operator may wish to explore not only the opportunity to host a primary school as stated above, but may also be interested in establishing a small boutique secondary school, or a K-12 school within the Pottsville Catchment. * Overall, it is recommended that educational lands be set aside in the Pottsville area to accommodate the likely future population. 1. Mr Anderson says that, whilst he is not an expert in demographics, he notes that the Dunloe Park Urban Release Area is likely to be well advanced by 2026, with an estimated total population of approximately 7,000 people whereas the two scenarios modelled by Ms Bennett use dwelling roll outs of 975 to 2031 as a conservative figure and 2000 dwellings by that date as a less conservative figure. 2. Ms Bennett agrees that the two scenarios are conservative and at its maximum development the area could accommodate an additional 2000 people. Based on Scenario 2, Ms Bennett says there is a need for additional educational land for primary schools, potentially by 2031 which indicates that the need for additional land is a matter of 'when' not 'if'. Should key sites develop faster than what is expected from the council's baseline expectations (which could happen, particularly if Dunloe Park supports around 5000 people by 2031 – Scenario 2) then primary schools will be at their limit in the five years to 2026 and secondary school facilities potentially by 2031. 3. The experts agree that the development proposal is not consistent with the DCP Map 7A which designates the Stage 18 site as a Potential School Site. 4. Mr Anderson says the DCP cannot validly reserve land exclusively for a public purpose (ie a public school) or for a private school as that is inconsistent with the LEP which zones the land R2 Low Density Residential. It is unreasonable to "reserve" the land for a school site potentially for a further 10 to 15 years. Whilst he agrees the zoning does not prohibit the sale of the site to the Department of Education, the former zoning of the land as 2(c) under Tweed Local Environmental Plan 2000 (LEP2000) or the current R2 zone do not reserve the site whereas he says the DCP purports to and is therefore inconsistent with the LEP and should be given no weight. 5. Mr Philbrook says Section B15 of the DCP has been through the regulatory procedure that applies to a Development Control Plan, including public exhibition and adopted by the council. Section 79C of the EP&AAct, specifically requires a consent authority to consider any development control plan when determining a development application. Clause 4(b) of LEP2000 states the following to provide a legal basis for the making of a development control plan that contains more detailed local planning policies and other provisions that provide guidance for future development and land management… Therefore there was no need to rezone the land for a specific use when a development control plan was available which provided guidance in how the area as to be developed. 6. He says the Department of Planning provided practice notes which discourage the use of special use zones unless the sites were significant that if not the land is to be zoned the same as an adjacent zone. 7. In relation to the suitability of the site for a school, Mr Anderson says that it does not comply with the Department of Education and Communities Advisory Notes for Developers and Consent Authorities for Master Planning New Educational Facility Sites Advisory Notes (Advisory Notes). He acknowledges that this policy was prepared for limited use in urban release areas in metropolitan south west and north west Sydney however says they are a useful tool for merit assessment of sites. 8. Mr Philbrook says the council has received correspondence from the Department of Education dated 3 September 2013 advising that the 5.3ha site is adequate for a potential school site with the realignment of the overland flow path. That correspondence is included behind Tab 25 of Volume 1, Exhibit 2. 9. The town planning experts disagree with regards to the site's suitability and on the suitability of a site in Dunloe Park. Mr Anderson says that because there may be opportunity to provide for the school site in Dunloe Park and that additional population will trigger the need for the school, it is better located on a site other than the subject site. He says other sites could be made available in either the Dunloe Park release area, in the RU2 zoned land adjacent to Seabreeze Estate or other locations with water and sewer supply potentially being available based on the Tweed Coast Waste Water Strategy. 10. Mr Philbrook says the preliminary master planning being undertaken for Dunloe Park does not include a school site and the other sites suggested by Mr Anderson do not have enough sewer capacity to accommodate both a school and the proposed 64 lot subdivision of the subject site within the existing sewer infrastructure or have not been through a detailed analysis to determine their suitability. That is because the site has been identified as a potential school site since 1999. 11. Mr Anderson says the site does not meet the Advisory Notes for new school sites and, following an extensive marketing campaign, no offers were received to purchase the site for a private or public school. He says the need for any new public school will be determined by the Department of Education's Cluster Analysis and if a school is required it could be provided at Dunloe Park. 12. Mr Philbrook says the Advisory Notes are no longer used by the Department of Education however says the site is suitable when assessed against the controls. Furthermore, there has been interest in the site from a private provider which is willing to discuss a number of options regarding leasing or buying the site. He agrees that ultimately, the Department of Education's Cluster Analysis will determine whether there is a need for government school/s however this analysis will not consider the need for non-government schools. 13. Both town planners agree that there is likely to be a demand for an additional school within the Pottsville area. They disagree on which site is more suitable. 14. In relation to the exception provisions of Section B21 of the DCP and in particular Section 3.5 as detailed at [26] Mr Anderson says that the 'Seabreeze Estate is mainly characterised by low density residential dwelling houses on lots ranging from approximately 600 to 900m2 and the construction of bulky school buildings, playing fields and ancillary car parking would be inconsistent with the established residential character and amenity of the estate. He reiterates his opinion that the site does not meet the Department of Education's Advisory Notes in relation to the siting of schools and says there are no other sites available within the Seabreeze Estate which are suitable for a school. Development of Stage 18 as a residential subdivision would not give rise to any additional demand for active or passive open space areas as sports fields are located approximately 500m east of the site and would be conveniently located in terms of any further school on the site. 15. Because the site would only have two street frontages following relocation of the open drain, it would be less than satisfactory as a school site when assessed against the Advisory Notes. He says the road network has been designed and constructed to accommodate future residential development and therefore is not suitable for a school from a parking and servicing perspective with previous stages of the estate designed and constructed based on the assumption that the area would be developed for low density residential purposes and therefore the street network does not ideally sit a school on the site, based on the street hierarchy, number of street frontages and pedestrian connectivity. 16. Mr Anderson says that it is not expected that a conventional residential estate will generate any noise issues which will be incompatible with the existing residential character and amenity of the area however the development of a primary or high school would introduce non-residential noise sources which are likely to give rise to significant amenity impacts. He says the proposed residential lots will be landscaped in accordance with the DCP requirements and landscaping of any future school development would need to be addressed in detail at the development application stage. 17. Mr Anderson says that because the site is zoned R1 Low Density Residential, the subdivision is consistent with the zone objectives and complies (or can comply) with relevant DCP requirements and, having regard to the circumstances, a residential subdivision is the most appropriate use of the subject land. If a school site is required to meet ongoing demand, the logical location is within the Dunloe Park release area. 18. Mr Philbrook says a school building 'bulk' can be mitigated through an appropriately designed building with increased setbacks, appropriate building heights, site coverage and landscaping. He notes the Seabreeze Estate contains a mix of low and medium density housing in the form of single dwellings, dual occupancies, multi dwelling housing and an aged care facility. 19. He too reiterates the fact that the Advisory Notes are no longer used by the Department and are not relevant to areas outside Sydney Growth Centre areas and the fact that the Department has advised the council the site is suitable for a school. He says the applicant has not demonstrated the matters required under Section 3.5 of the DCP in terms of recreation areas or landscaping, that the site has frontage to three streets, not two as Mr Anderson states as frontage to Sawtell Street is also available in addition to Seabreeze Boulevard and Tom Merchant Drive. He says the road network is acceptable to cater for a school and the site is centrally located within the estate which is connected by a bus route, cycle and pedestrian network system. 20. Mr Philbrook says that the site with its three road frontages will be separated by a 17m road reserve reducing potential noise impacts and notes that St Ambrose Primary School, a recently opened Catholic school is located directly adjacent to residential development without separation. 21. He says the most appropriate use for the site is as a school and the site has been identified as a potential school site by the applicant through the Master Plan and Development Control Process since 1999. The future population within the Pottsville catchment demonstrates a need for a school. As there is only one identified school site within the Pottsville location, it should be retained to meet the demand of increasing population growth within the Pottsville locality. 22. Ms Bennett says that, if the population of the area grows in accordance with her modelled Scenario 2 or is fast tracked with the additional 7000 population that Mr Anderson says is likely then a state primary school would be required in 2026 and a high school in 2031. For that reason, planning for a school should start in 2021 to allow lead time. 23. The experts agreed that the whole of the site would not be required unless it was to be developed as a high school and therefore either a state primary school and/or non-government primary, high school or K-12 school may be developed on a lesser area. No analysis of such a scenario had been conducted. The Cluster Study 1. The Department of Education is currently undertaking a study of its assets in the Tweed Shire to ascertain long term requirements. That study has been referred to during the hearing as the Cluster Study and, on the day of the site view, the Court was informed was due to be completed in September 2016. The Study has not been completed and it is to enter the consultation phase early in 2017 once school resumes. 2. According to evidence provided, the Department has changed its approach to planning with demographic analysis and enrolment forecasting used along with school community engagement. The objective is to ensure demand is analysed and met at a higher level, maximising existing assets where possible. A paper tendered by the council as part of Exhibit 2 prepared by the Department and dated 6 July 2016 describes Cluster Planning as: * Grouping around 5-15 schools having regard to existing demographic trends and geographic catchments. * Recognises that developing the best asset solution for enrolment demand in one school means considering the opportunity/impacts in surrounding schools. * Primarily about meeting accommodation demand. * Consideration to be given to existing sites – * Opportunities and constraints, * Functionality and condition, * Joint use opportunities, * Location relevant to demand. 1. The document lists key trends and approaches across NSW as follows: * Schools to get bigger. All new primary schools in Sydney Metro designed to 1,000 students, high schools to 2,000 students * Smaller footprint – vertical * Focus on maximising outdoor space * Major joint ventures with external parties (Council….) * Tightening of out of zone enrolments 1. According to the evidence, there are 3 high schools in the Tweed Cluster (Banora Point HS, Kingscliff HS and Tweed River HS) and 13 primary schools (Bilambil, Carool, Cudgen, Fingal Head, Kingscliff, Terranora, Tweed Heads South, Banora Point, Bogangar, Centaur, Duranbah, Pottsville Beach and Tweed Heads). Interestingly, none of the schools in Murwillumbah are included in the cluster whereas, according to resident evidence, many of the local Pottsville children attend schools in that town. 2. Despite the Cluster Study not having been completed, the Department of Education provided Mr Philbrook with advice in an email dated 7 October 2016 (Exhibit 12). This states: Please note that the NSW Department of Education has reviewed its demand for educational facilities within the Tweed area as part of the preparation of an overarching strategy for educational facilities within the area. Although the overarching strategy has not been completed, a detailed review of demographic forecasts and asset conditions indicates that the Department would like to confirm its previous advice that it does not wish to acquire the identified (via DCP) site for a school at Seabreeze Estate. At present there are 43 existing surplus teaching spaces with the public secondary schools in the Tweed coastal area including 15 spare teaching spaces at Kingscliff High School which is the designated secondary school for Pottsville. Compounding this the indicated asking price for the identified site is cost prohibitive noting that the Department's focus is on enhancing existing school facilities. Advertising campaign 1. The applicant filed two affidavits of Lance Malcolm Cotterill (Exhibits B and C). Mr Cotterill is a licenced real estate agent who was engaged by the applicant to market the property on behalf of the owner as a potential school site, initially in March 2015 and later in June/July 2016. His evidence is that the only enquires to the original advertisements related to residential subdivision and to the latter, several enquires, primarily from organisations interested in undertaking a residential subdivision. 2. In addition, Mr Cotterill advises that he has contacted both the Parish Business Manager of St Anthony's Parish in Kingscliff and the Catholic Diocese of Lismore to determine interest in the site for a school. The replies received and annexed to his affidavit indicate that neither body was looking for a school site in the area. 3. One interested party had advised Mr Cotterill of its intention to originally lease a constructed school on the site and more recently purchase the site for a private school. The most recent series of emails between Mr Cotterill and the person acting for the school indicate that interest in the site remains however the purchase price offered on 30 November 2016 was rejected by the owners on 2 December 2016 (Exhibit E). 4. At the time of the hearing no further evidence of interest was provided however, the Court notes how recently this correspondence was exchanged and the fact that there is a school holiday period. 5. Mr Cotterill was not required for cross examination. Conclusion and findings 1. It is common ground that all of the issues raised in the contentions that relate to the merits of subdivision of the site into residential allotments have or can be addressed through conditions of consent. 2. The issue for the Court to determine is whether the site is suitable for subdivision into residential allotments, particularly in relation to its designation as a potential school site in the council's strategic planning documents since 1999, those documents being based on the applicant's original proposal for rezoning of the land for residential purposes as well as the council's strategic review of community infrastructure. This is in parallel to the development of the Seabreeze Estate which, commencing in 2000 is in its final stages of development, the site being one of the last to which an application for development has been lodged. 3. It is also common ground that, based on the likely population demand within the Pottsville region, there will be a need for another school. What is not agreed is where and when that school would be required/located. It could be by 2026 or as late as 2031 unless a non-government school determines it will establish earlier. 4. I acknowledge that, based on the evidence before me that the Department of Education does not require the site for either a primary or high school at this stage despite it having not completed the Cluster Study. I do not have any regard to the asking price for the land, that is not an issue for the Court, however this does appear to be an influencing factor for the Department however not its primary determination. 5. The strategic planning for the Tweed Coast is well documented in the evidence. This has long identified a need for a school site in Pottsville and the council has incorporated such provision within its DCP since 2000. I accept Mr Philbrook's evidence that it is unlikely that the site would have been zoned anything other than residential when the council's LEP was made a "standard instrument" due to the Department of Planning's directive on Special Use zones. Accordingly, the only way for a council to identify areas deemed suitable for particular uses is within a DCP. I note that both the Pottsville Beach Public School and St Ambrose Primary School are both located on land zone Residential. 6. Section 74BA of the EP&AAct sets out the purpose and status of development control plans as follows: (1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development: (a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of land zones under any such instrument. The provisions of a development control plan made for that purpose are not statutory requirements. (2) The other purpose of a development control plan is to make provisions of the kind referred to in section 74C (1) (b)–(e). (3) Subsection (1) does not affect any requirement under Division 3 of Part 4 in relation to complying development. 1. That is how the council has provided guidance on how it intends to achieve the aims of its LEP. The DCP has, according to the evidence nominated the site as a potential school site since 1999. The designation has been considered on a number of occasions since with the council's latest resolution to retain that designation with a review no earlier than 2018. 2. The aims of the LEP are: (a) to give effect to the desired outcomes, strategic principles, policies and actions contained in the Council's adopted strategic planning documents, including, but not limited to, consistency with local indigenous cultural values, and the national and international significance of the Tweed Caldera, (b) to encourage a sustainable local economy and small business, employment, agriculture, affordable housing, recreational, arts, social, cultural, tourism and sustainable industry opportunities appropriate to Tweed, (c) to promote the responsible sustainable management and conservation of Tweed's natural and environmentally sensitive areas and waterways, visual amenity and scenic routes, built environment, and cultural heritage, (d) to promote development that is consistent with the principles of ecologically sustainable development and to implement appropriate action on climate change, (e) to promote building design which considers food security, water conservation, energy efficiency and waste reduction, (f) to promote the sustainable use of natural resources and facilitate the transition from fossil fuels to renewable energy, (g) to conserve or enhance the biological diversity, scenic quality and geological and ecological integrity of Tweed, (h) to promote the management and appropriate use of land that is contiguous to or interdependent on land declared a World Heritage site under the Convention Concerning the Protection of World Cultural and Natural Heritage, and to protect or enhance the environmental significance of that land, (i) to conserve or enhance areas of defined high ecological value, (j) to provide special protection and suitable habitat for the recovery of the Tweed coastal Koala. 1. Of particular relevance to the application are aims a and b. The DCP seeks to nominate the site as a school so as to give effect to its strategic planning which identifies a need to provide appropriate infrastructure including a school for the Pottsville locality. Based on the evidence provided, I am satisfied that the studies which underpin the plans are detailed and well executed. Therefore, I consider the provisions should be given weight in my determination of the application. 2. Section 79C(3A)(b) requires a consent authority to flexibly apply standards with respect to an aspect of the development and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. Whilst the DCP does not set standards, it does, in Part B21 Section 3.5 contemplate that the site may not be required for a school and sets criteria to be satisfied if an alternate use is to be made of the land. 3. Those provisions, detailed at [26] apply to both the site and the Dunloe Park release area. It is apparent from the evidence that the council is currently in the master planning stage for Dunloe Park and that at this stage no site has been nominated for a school within that release area however it appears that there may be opportunity to explore this option due to the early stages of the planning process however this path has not been followed to date. Whether the council has followed those processes detailed in the DCP for the Dunloe Park release area has not been the subject of evidence other than the evidence that there is no current plans to incorporate a school under the master plan that is being prepared. 4. It is however appropriate that those provisions are considered by the Court to ensure compliance with the provisions of s79C(1)(a)(ii) of the EP&AAct. In accordance with the provisions of Zhang v Canterbury City Council [2001] NSWCA 167 the DCP must be a focal point of the decision making process. I acknowledge that the provisions of the DCP do not prevent the use of the site for any purpose other than a school provided that use is a use permissible under the LEP or other relevant environmental planning instruments. 5. The provisions of Section B21 Part 3.5 of the DCP require a development application that seeks a use for the site other than as a school to detail the circumstances as to why a school cannot or should not be provided on the site, with respect to, but not limited, to the criteria listed in that clause. The application must also address how any proposed alternative land use provides an appropriate use of the land and represents a better outcome than the provision of a school. 6. In regard to the assessment of the application against the criteria in the DCP, I prefer the evidence of Mr Philbrook. I firstly accept the evidence from the Department of Education that the site is suitable for development as a school and that, as stated by Mr Philbrook, a school could be designed and sited appropriately to fit within the character of the Seabreeze Estate with adequate recreation areas, parking and servicing. The site is on a bus route and Seabreeze Boulevard is a collector road within the estate. I agree with Mr Philbrook that the road has adequate width to cater for traffic and pedestrians and, as the site has been nominated by the applicant as a school since inception of the master planning for the estate, I cannot accept that the road capacity has not been designed to cater for a school. Similarly, a school could be designed to address any potential acoustic issues and the existing road network would provide an adequate buffer to assist in ameliorating any noise issues. Finally, landscaping of the site could be integrated into the design of any school campus to be compatible with the desired future character of the locality. The site is fully serviced. 7. Whilst I accept that residential allotments would be an appropriate use of the site and be consistent with the objectives of the LEP and the R2 zone, I am not satisfied, based on the evidence before me, that at this stage, subdivision of the site as proposed represents a better outcome than the provision of a school or would be in the public interest. 8. That is because it is common ground that a school will be required in Pottsville. The council's long term strategic planning has and continues to address that need through its DCP by identifying that land. Planning for the orderly and economic use of the land does not always mean that thresholds that trigger the need for a particular land use always coincide with the completion of surrounding development. There may be a delay in finalising the delivery of the full range of infrastructure required by a community for a variety of reasons. That should not prevent the delivery of those facilities that have been planned for and which are demonstrated to be necessary over time. This is a particularly important element of strategic planning and ensuring delivery of all necessary infrastructure over time. 9. Whilst the Department of Education currently has no interest in the site, there is evidence that a non-government school does seek to establish a school in Pottsville and is interested in acquiring the site. One offer to purchase the site has been made and was quickly rejected by the owner. I do not consider that such action demonstrates in any way that the site is not required as a school site nor that a better outcome would be achieved through consent being granted to the subdivision that is sought. There is no evidence that negotiations have been exhausted or options such as purchasing only part of the site have been explored. 10. The possibility that the whole of the site may not be required as a school was also canvassed through the hearing and it was agreed that a smaller site could accommodate either a primary school or "boutique" non- government primary or high school or possible even a K-12 school however no consideration of the size of land to accommodate these options was made. 11. At the present stage, I am not satisfied that the applicant has satisfactorily demonstrated the criteria to be addressed in the DCP are met. 12. Further, I do not consider that, having regard to the council's strategic planning and the consistent application of its controls, that approval of the application would achieve the objectives of the LEP or the R2 zone objective of providing other land uses facilities or services to meet the day to day needs of residents, acknowledging that the subdivision would provide for the housing needs of the community in a low density environment. Nor would it be in the public interest. 13. There is no evidence as to whether or not the option of using only part of the site may be a viable and therefore it is not appropriate at this stage to allow the subdivision to proceed. In view of the apparent difference between an interested party and the applicant in assessing the sale price of the land, it may be possible that both a school and further subdivision of the site occur. That would achieve the aims of the LEP and the council's strategic planning intent. 14. For these reasons, I do not consider that consent should be granted to the development as proposed. 15. The Orders of the Court are 1. The appeal is dismissed. 2. Development Application No. DA 15/0422 for the subdivision of the land into a total of 66 allotments over two stages, stages 18A and 18B comprising two lots to be dedicated to the council as public reserves (lots 1814 and 1866) and one as a drainage reserve (Lot 1826) leaving a total of 63 residential allotments is refused consent. 3. The exhibits, other than exhibits A and 1 are returned. ______________________ Sue Morris 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. Decision last updated: 24 January 2017