Land and Environment Court New South Wales Medium Neutral Citation: ASJ Commercial Property Pty Ltd v Tweed Shire Council [2017] NSWLEC 1470 Hearing dates: 12 May 2017 Date of orders: 31 August 2017 Decision date: 31 August 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to DA15/0641 for the subdivision of the lot 7 in DP 1077697 into two lots, subject to the conditions of consent attached as Annexure 'A'. (3) The exhibits are returned, with the exception of Exhibits 1 and A. Catchwords: Development Application: subdivision of land from one into two lots; infill subdivision; urban design constraints; kerb frontage and parking requirements; whether an exemption available under Tweed DCP 2008 clA5.4.2 of should apply. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No. 1 - Development Standards Tweed Local Environment Plan 2000 Tweed Local Environment Plan 2014 Texts Cited: Tweed Development Control Plan 2008 Category: Principal judgment Parties: AJS Commercial Property Pty Ltd (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: C Gough (Applicant) M Levy (Respondent) Solicitors: Storey and Gough Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2017/8540 Publication restriction: Nil Judgment Background 1. COMMISSIONER: This appeal concerns the proposed subdivision of one lot into two lots at 768-770 Casuarina Way, Casuarina (the Subject Site), also identified as lot 7 in DP 1077697. 2. The Subject Site is located on a cul-de-sac on Casuarina Way. It has an area of 1798 m², with a narrow frontage to Casuarina Way of 6.335m, and with a kerb frontage of 3.4m. 3. The application proposes that, as a consequence of these existing features, the current driveway and entry to the Subject Site from Casuarina Way should serve as a common entry to the two lots that would result from the subdivision of the Subject Site. 4. The Applicant has appealed the decision of Tweed Shire Council to refuse development consent for its development application (DA15/0641). The appeal is brought pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 5. The appeal was not subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 11 August 2016. 6. An inspection of the Subject Site was undertaken prior to the commencement of the hearing. No objectors sought to make submissions to the Court during the on-site inspection and hearing. Planning considerations 1. The EPA Act requires under s79C(1) that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: 1. the provisions of: 1. any environmental planning instrument, and 2. any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and 3. any development control plan, and 4. any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and 5. the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and 6. any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), 1. that apply to the land to which the development application relates, 2. the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, 3. the suitability of the site for the development, 4. any submissions made in accordance with this Act or the regulations, 5. the public interest. 1. Under the Tweed Local Environment Plan 2014 (TLEP 2014), the western portion of the Subject Site, with an area of 1,187m2, is zoned R2 Low Density Residential. 2. An eastern portion of the site, with an area of 611m2, is identified as a deferred matter under TLEP2014, and as a consequence is zoned 7(f) Environmental Protection (Coastal Lands) under Tweed LEP 2000 (TLEP 2000). This land forms part of a larger area of land zoned 7(f) that extends north and south of the Subject Site. 3. TLEP 2014 requires that the minimum lot size for lots zoned R2 is 450m2. The R2 zoned portions of each of the proposed lots would exceed this minimum size. The proposed subdivision is permissible with consent for that portion of the site zoned R2. 4. The minimum lot size for land zoned 7(f) under cl21A of TLEP 2000 is 40Ha. However, the total area of land zoned 7(f) on the Subject Site is 611m2, and so is already below the minimum lot size requirement for land zoned 7(f). 5. The Applicant has lodged a written objection under the provisions of SEPP1 proposing that consent should be granted to the development application notwithstanding the requirements of cl21A of TLEP 2000. 6. The SEPP 1 objection is made on the basis that compliance with this development standard is unreasonable or unnecessary because: 1. at the time of its original subdivision, the area of the Subject Site that is zoned 7(f) was already less than the minimum required under the provisions of TLEP 2000. 2. under the current development application the proposed subdivision would not reduce the area of 7(f) zoned land, and 3. the objectives of the 7(f) zone would be addressed to the same degree under the proposed subdivision as they are under the Subject Site's current configuration. 1. During the hearing the Respondent noted that Council was satisfied that the proposal was compliant with the provisions of TLEP 2014 and TLEP 2000 in terms of permissibility (including the SEPP 1 objection lodged in respect of the non-compliance with a development standard under clause 21A of LEP 2000). 2. The development application is also subject to the provisions of Tweed DCP 2008 (TDCP 2008). In particular, the Respondent drew the Court's attention to the following sections of that document as being of particular relevance to this case: 1. Section A2 – Site Access and Parking Code, 2. Section A5 – Subdivision Manual, and 3. Section D1- Development Design Specification (Road Design). 1. Section A2 (under section A2.3 - Access and parking demand schedule) requires that following subdivision each resultant lot should provide one parking space per dwelling and parking for another vehicle. That is that the subdivision be capable of providing two car parking spaces per dwelling. 2. During the hearing the Parties agreed that the proposed subdivision would result in lots of a sufficient size and configuration to meet the requirements of section A2.3 of TDCP 2008 concerning the provision of on-site parking. 3. Section D1 (under section D1.09.5) requires that lots on a cul-de-sac have a minimum lot frontage of 12.5m or a minimum 9.0 kerb frontage (whichever is the greater). 4. The Parties agreed that the Subject Site has a frontage of less than 12.5m and a kerb frontage of less than 9.0m, and that this had been the case since the subdivision of land that created the Subject Site. 5. Section A5 (under section A5.4.12) requires that each lot have a minimum 9.0m of kerb frontage unless alternative provisions are made for parking. 6. Notwithstanding these requirements for minimum lot frontage and minimum kerb frontage, section A5 of DCP 2008 (under section A5.4.2 Urban Structure) provides in relation to infill subdivision: Infill subdivisions may be constrained by an existing urban structure that may make it difficult to comply with some of the urban design objectives and criteria in this manual. Infill subdivisions will therefore be exempt from those requirements where their application is so constrained. Contentions 1. The contentions in this matter centred on whether the proposed subdivision could be approved despite the requirements of the TDCP 2008 with respect to kerb frontage width and car parking requirements. 2. As noted at [17] the Parties agreed that the proposed subdivision would result in two lots of a sufficient size and configuration to meet the requirements for on-site parking set out within section A2.3 of TDCP 2008. 3. The remaining contentions concerned the requirements of Sections A5.4.12 and D1.09.5 of TDCP 2008, and specifically whether the proposed subdivision could be approved given that: 1. the kerb frontage of the Subject Site did not meet the 9.0m kerb frontage requirement; 2. the development application did not include alternative provisions for parking. 1. The Parties agreed that the Subject Site was created under a subdivision in 2002 with a kerb frontage of 3.4m, which was less than the 9.0m frontage required by DCP 2008. 2. Notwithstanding this, the Respondent said that the subdivision now proposed should not be approved because the subdivided lots could not provide the minimum 9.0m kerb frontage required under the TDCP 2008. The Respondent said that the 9.0m kerb frontage requirement has been established by Council to provide adequate space for both access to the subdivided land via a driveway as well as one space for public parking in the cul-de-sac. Should the requirements for a 9.0m kerb frontage and the provision of alternative parking apply to the proposed subdivision of the Subject Site? 1. It was common ground between the Parties that the Subject Site was created with a kerb frontage of 3.4m, which was less than 9.0m kerb frontage required by TDCP 2008. 2. The Applicant said that the design of the subdivision around the cul-de-sac, and within which the Subject Site was located, provided for a single driveway entry to the Subject Site, and up to three public parking spaces in the cul-de-sac. The Applicant noted that this situation would not change should the proposed subdivision receive consent. 3. The Respondent agreed with this assessment of the current arrangements and conceded that the constraints of the cul-de-sac did not allow for any additional public parking to be provided on the Casuarina Way cul-de-sac, nor in any other area close to the Subject Site. 4. Notwithstanding this, the Respondent maintained that the requirements of the Subdivision Manual (Section A5) within TDCP 2008 should apply to the proposed subdivision, and that the proposed subdivision should not receive consent as it could not meet those provisions. 5. The Applicant noted that section A5.4.2 Urban Structure provided that: Infill subdivisions may be constrained by an existing urban structure that may make it difficult to comply with some of the urban design objectives and criteria in this manual. Subdivisions will therefore be exempt from those requirements where the application is so constrained. 1. The Applicant said that, in line with this provision, the proposed subdivision should be exempt from the kerb frontage width and other on-street parking requirements of Section A5 of TDCP 2008 because: 1. the application was for an infill subdivision; 2. the existing frontage to Casuarina Way represented a constraint of the existing urban structure; 3. the existing urban design constraints made it difficult for the Applicant to comply with the urban design objectives and criteria within the subdivision manual. 1. Evidence was presented by the authors of the joint expert report on town planning matters, who were: 1. Mr Lance Newly, senior town planner of Planit Consulting, for the applicant; 2. Mr Seth Philbrook, a Development Assessment Planner with Tweed Shire Council, for the Respondent; 3. Mr Brenden Schwarz, a Civil Engineer with Tweed Shire Council, for the Respondent. 1. Both Mr Newly and Mr Philbrook confirmed that: 1. the proposed subdivision is an infill subdivision; and 2. the existing urban structure does constrain the Subject Site in terms of achieving a minimum 9.0m kerb frontage and providing any alternative parking. 1. In relation to the applicability of the exemption provided for infill subdivision proposals section under A5.4.2 of TDCP 2008, both Mr Philpott and Mr Schwartz said that to their knowledge this provision had not been enlivened by Tweed Shire Council. Neither witness could provide a reason as to why this was so. They both also confirmed that they could not provide an example of the exemption available under that section being applied by Tweed Shire Council. 2. However, Mr Philbrook conceded that, if the Court were of the view that section A5.4.2 of the Subdivision Manual did provide an exemption to the kerb frontage and parking requirements of section A5 of TDCP 2008, then the application to subdivide the Subject Site should be approved. 3. Having considered the above, including the testimony of the experts, I am satisfied that: 1. the proposed subdivision of lot 7 in DP 1077697 into two lots is permissible under TLEP 2014 and TLEP 2000; 2. the provisions of DCP 2008 section A5.4.2, which provides an exemption for infill subdivisions that are constrained by urban design, should be applied to this development application in relation to the minimum kerb frontage and parking requirements because: 1. the experts agreed that the proposal is for an infill subdivision; 2. the subject site is constrained by an existing urban structure; 3. these constraints make it difficult for the application to comply with the urban design objectives and criteria within section A5 Subdivision Manual of TDCP 2008. 1. the requirements of section A5 Subdivision Manual of TDCP 2008 for a minimum 9.0m kerb frontage and for alternative parking arrangements should not apply to the application to subdivide the Subject Site. Conclusion 1. As a consequence of the above, I conclude the proposed development is in the public interest and that consent should be granted for the subdivision of lot 7 in DP 1077697 into two lots as proposed in the Applicant's development application DA15/0641. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA15/0641, for the subdivision of the lot 7 in DP 1077697 into two lots, subject to the conditions of consent annexed hereto as Annexure 'A'. 3. The exhibits are returned with the exception of Exhibits 1 and A. …………………………. Michael Chilcott Commissioner ********** 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: 31 August 2017