The purpose of open space in the Terranora Village Estate will be key to deciding a modification approval

Whether a block of open space is required to be usable by the public or not will be a key deciding factor in a 110-lot development modification appeal.

Plans for the Terranora Village Estate.

Whether a key piece of open space needs to be usable under planning policy was a key factor for debate in final submissions of a Land and Environment Court hearing.

The matter of Horseshoe Properties Pty Ltd and Tweed Shire Council continued on Friday with both parties presenting final submissions.

>> READ MORE: Day one of Horseshoe Properties and Tweed Shire Council

>> READ MORE: Day two of Horseshoe Properties and Tweed Shire Council

Horseshoe Properties are appealing a decision to refuse a development modification of the Terranora Village Estate which would increase the lots from 101 to 110 and move a piece of open public space.

The council argues the modifications meant the development was not fundamentally the same as the originally accepted modification which the applicant disputes.

Solicitor for the applicant Angela Pearman argued the new position of the open public space better fit the council’s Development Control Plan as the land would be developed to meet the criteria of being “usable, casual open space”.

“Change in location does not radically transform the development,” Ms Pearman said.

Tweed Shire Council solicitor Heather Irish disagreed and said the criteria for the original block of land was to be “passive” and vegetation in the area was to be left undisturbed.

Ms Irish said the relocation of the lot placed it into a different zone which would require the land to be 40 hectares rather than the proposed 5.331 hectares.

Ms Pearman referenced evidence given in day two of the hearing regarding the contention that the land for four new lots was unsuitable for development – five additional lots already being approved and are irrelevant to this case, bringing the total to 110.

She said the geotechnical engineer, Dr Edem Berdie, who gave expert evidence for the council, was mainly concerned about the cost of remediation to make the land suitable, which was a burden for the applicant.

She said although Dr Berdie said there was enough information to determine if the land was suitable he would not declare it was not possible to be remediated.

Ms Irish argued the geotechnical expert for the applicant, Ryan Kemp, had agreed in a joint expert report that supplementary investigation and a new slope assessment was required to make a determination on the land – which contradicted oral evidence given during the hearing.

Ms Irish said evidence given by expert town planner Mark Pepping for the applicant had taken a micro view on the required “better urban design” and said the court should consider the development as a whole rather than one street.

Ms Pearman said the town planner expert for the council Michael Svikis had conceded that although the modification would require more earthworks, the maximised density proposed was considered better urban design.

Acting Commissioner Philip Clay ordered both parties to draft conditions for the modification by July 9.

A decision will be determined at a later date.