Bramley v Coffs Harbour City Council - [2014] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation: Bramley v Coffs Harbour City Council [2014] NSWLEC 1194
Hearing dates: 10,11 September 2014
Decision date: 23 September 2014
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is upheld.
2. Development Application No. 304/14 for the demolition of an existing motel and structures and the construction of a new hotel, restaurant, wine bar, function room, pool, gym and cabana at 209 Pacific Highway, Coffs Harbour is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1 and M.

Catchwords: DEVELOPMENT APPLICATION: demolition of existing motel buildings and structures - construction of anew hotel - restaurant - wine bar - function room, - pool - gym - cabana - whether height above development standard can be supported
Legislation Cited: Coffs Harbour Local Environmental Plan 2013
Environmental Planning and Assessment Act 1979
Cases Cited: Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Wehbe v Pittwater Council [2007] 156 LGERA 446
Category: Principal judgment
Parties: Chris Bramley (Applicant)
Coffs Harbour City Council (Respondent)
Representation: Mr A Galasso SC (Applicant)
Mr J Robson SC (Respondent)
Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 10350 of 2014

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application No. 304/14 by Coffs Harbour City Council that seeks development consent for:

demolition of existing motel buildings and structures;
construction of an 83 room hotel in two separate buildings comprising 29 studio rooms, 53 one bedroom rooms and 1 two bedroom unit;
hotel facilities including 100 seat restaurant, 25 seat wine bar, function room, pool, gym and cabana;
basement and at grade car parking for 107 cars;
access from a proposed service road;
signage; and
strata title subdivision.

The contentions raised by the council in their Statement of Facts and Contentions were;

1. Height/bulk.

2. Flooding.

3. Parking.

4. Visual impact.

5. Works in the Road Reserve.

6. Public interest

7. Landscaping.

8. Operation and strata management.

9. Accessibility.

10. Signage.

11. Ecology.

12. Aboriginal culture.

Following further discussions between the parties, additional information and additional conditions of consent, the sole contention in the proceedings amounted to whether the variation to height development standard was acceptable (Contentions 1 and 4).

At the site inspection, evidence was heard from one nearby residential household on the impacts of flooding in the area. A number of other local residents and operators of businesses in the area spoke in favour of the proposed development.

The site

The site is 209 Pacific Highway, Coffs harbour, being Lot 1 in DP 1183009, (the site) and has an area of 8,533.5 sq m. To the south and east of the site are tributaries of Coffs Creek. To the north of the site is Coffs Village Caravan Park.

The site gently slopes to the south towards Tree Fern Creek and to the east towards North Coffs Harbour Creek. The level of the site is generally between 2m and 3m AHD and is fully flood prone. The site is also identified as being bushfire prone.

The site currently is occupied by a single storey motel contained in several buildings spread across the site. It is generally sparsely vegetated, with a clump of trees located approximately midway along the north-eastern boundary and at the southern corner of the site and with a group of She-Oak along the North Coffs Harbour Creek.

The character of this portion of the Pacific Highway is principally a mix of low scale commercial and residential development, with single storey development the predominant form. Some open space is located near existing creek lines.

Relevant planning controls

The site is zoned B6 Enterprise Corridor under the Coffs Harbour Local Environmental Plan 2013 (LEP 2013). The proposed development is permissible in this zone, with consent. Clause 2.3(2) states:

(2) 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.

Clause 4.3(2) provides for the height of buildings and states that "the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The maximum height on the Height of Buildings Map is 8.5 m. It was agreed that part of the proposed development breaches the maximum height development standard. The applicant provided a written request that seeks to justify the contravention of the height development standard, in accordance with cl 4.6.

Clause 4.4(2) provides for floor space ratio (FSR) and states that "the maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. The FSR on the Floor Space Ratio Map is 0.8:1. It was agreed that the proposed development satisfies this development standard with an FSR of 0.58:1.

Coffs Harbour Development Control Plan 2013 (DCP 2013) provides relevant requirements for the site. Component E3 Coffs Harbour City Centre applies to the site.

A number of State Environmental Planning Policies, Regional Plans and State Policies apply to the site but are not relevant to the height contention.

Can the variation to the height standard be supported?

The requirements

Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

The objectives of the height standard are set out in cl 4.3 (1) and state:

(a) to ensure that building height relates to the land's capability to provide and maintain an appropriate urban character and level of amenity,

(b) to ensure that taller development is located in more structured urbanised areas that are serviced by urban support facilities,

(c) to ensure that the height of future buildings has regard to heritage sites and their settings and their visual interconnections,

(d) to enable a transition in building heights between urban areas having different characteristics,

(e) to limit the impact of the height of a building on the existing natural and built environment,

The extent of the breach of the height standard

The Dictionary to LEP 2013 defines building height as:

building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like..

The extent of the breach of the height standard was agreed between town planners Ms Kerry Gordon, for the council and Mr Andrew Darroch, for the applicant. The proposed development consists of four distinct elements; the gym and pool deck facilities, the reception/restaurant/function room building, the northern accommodation building and the southern accommodation building. The southern accommodation building has a maximum height of 13.9 m while the other three building elements satisfy the building height standard.

The written request

Mr Darroch prepared the written request. He states that the variation to the height standard can be supported because the proposed development is consistent with the zone objectives in that the proposal provides for:

a business use along the main road with a mix of compatible uses (dot point 1),
employment uses (dot point 2),
an absence of retail uses (dot point 3),
no residential uses (dot point 4),
no activities which would detract from the commercial core (dot point 5),
a positive contribution to the streetscape and a safer public domain (dot point 6)
no small scale office premises (dot point 7).

The proposed development is also consistent with the height objectives. The site is an unusually large allotment within the zone with a significant depth (120 m) to width (30 m) ratio so that it is able to accommodate the proposal within its capability and can still provide and maintain an appropriate urban character and level of amenity (objective (a)).

The site is located on the edge of the B6 zone. On the eastern and south eastern side of the open space land, the zoning and consequent building height change to 11m and 15.5m so that the proposal provides an appropriate transition in those limited instance where it can be seen. This places the height closer to those more structured urban areas and enables the transition in building heights contemplated by, and consistent with the height objective (objective (b)).

The proposal has been sited and designed to reduce the height of the building and its impact on the natural and built environment and relocate the form to a more appropriate and less sensitive location consistent with the height objective. The proposal minimises any overshadowing, loss of privacy and visual impacts for the surrounding land. The proposal reduces in scale where it adjoins the other zone and the bulk and scale of the proposal is considered to be consistent with the desired character of the locality and provide an intensity of development that is commensurate with the desired future character (objective (e)).

The written request states that the development standard is unreasonable or unnecessary and that there are sufficient environmental planning grounds to justify contravening the development standard because the proposal results in a building form of bulk and scale consistent with the desired future character and sympathetic to the sensitive reserve lands to the west and south. The failure to set aside the standard would in effect give rise to an inappropriate building form. The contravention of the control by the amended proposal does not give rise to any environmental effect of sufficient significance, which would cause concern. The written request also states that the environmental benefits of the proposal providing accommodation at the upper level of the building while retaining the remainder of the site as low scale and in an open form, is on balance an appropriate environmental outcome to justify the contravention of the development standard.

The council's case

Ms Gordon states that the written request does not support the variation to the height standard. She states that once development occurs, there will be little vegetation or structures to prevent views from the Pacific Highway in a south-easterly direction towards the three storey element of the southern accommodation building. In combination with the immediately adjoining property, the site is unique within the B6 zone, particularly in terms of its visual setting, with the development existing on the two sites being "framed" by the extensive vegetation within the surrounding reserves. The backdrop of the vegetation forms a strong and highly desirable element of the Pacific Highway streetscape in this location and is further enhanced by the vegetated frontage of the reserve adjoining the site to the west. This streetscape presentation is the critical context within which the assessment of the suitability of the proposed tall and bulky building must be considered.

The objectives of the B6 zone include that development be of small-scale and make a positive contribution to the streetscape whilst promoting business along the main roads. Further, the objectives of the height control seek ensure that height does not have unacceptable visual impacts upon the natural and built environment of the locality. Given the special landscaped backdrop and setting of the subject site and its immediate neighbour, I am of the opinion that to make a positive contribution to the streetscape and not unacceptably impact upon the natural environment, any development of the site must retain good visibility to the backdrop and must be landscaped to enhance that backdrop.

The height control of 8.5m, if complied with, would allow an elevated two storey form of development, which would be commensurate with the height control of the residential area that surrounds the majority of the B6 zone along the Pacific Highway and would allow the backdrop of the surrounding reserves to be viewed above the development on the site and adjoining sites. The fact that this can be achieved on the site is shown by the two storey element of the accommodation building and the reception/restaurant building, which are both elevated for flood protection, are both two storey and both comply with the height control.

The proposed building has a height of 13.9m and with a 8.5m height control, breaches the control by 5.4m. The fact that the site is flood prone does not justify the significant departure from the height control, nor does the fact it is bushfire prone. Further, the fact that the site is proposed to be developed below the maximum FSR is also not a reason to permit a significant breach of the height control. Rather, these facts, together with the need to provide an appropriate riparian buffer to the adjoining creeks, show that the site is so constrained that it is unlikely it can be reasonably developed to the maximum FSR control given the height control applicable to the site. In the opinion of Ms Gordon, the controls go "hand in hand" and the fact that the maximum FSR cannot be achieved, without significant breach of the height control, shows that the proposal is either not a skilful design taking into consideration the constraints of the site or is an overdevelopment of a severely constrained site.

The cl 4.6 variation request does not address the objectives of the zone or the height, does not establish that compliance is unnecessary or unreasonable and has not established there are sufficient environmental planning grounds to justify contravention of the standard.

The assessment framework

Clause 4.6 of LEP 2013 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion at [27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

Findings - zone objectives

The zone objectives are:

· To promote businesses along main roads and to encourage a mix of compatible uses.

· To provide a range of employment uses (including business, office, retail and light industrial uses).

· To maintain the economic strength of centres by limiting retailing activity.

· To provide for residential uses, but only as part of a mixed use development.

· To facilitate the development of small-scale business uses that do not detract from the core commercial functions of the Coffs Harbour central business district.

· To ensure that new commercial buildings make a positive contribution to the streetscape and contribute to a safe public domain.

· To allow for the development of small-scale office premises that support uses in the enterprise corridor zone but that do not detract from the primary commercial role of the Coffs Harbour central business district.

The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the height standard is appropriate. Ms Gordon accepted that the height standard objectives were more relevant however they are a necessary matter to be considered. In my view, the objective relating to new commercial buildings making a positive contribution to the streetscape and contributing to a safe public domain (dot point 7) is the only objective that relates to the variation to the height standard. The others relate to land uses rather than building design.

I am satisfied that the proposed development is consistent with this objective as I did not understand there to be any concern over the Pacific Highway streetscape and no issue was raised over the development contributing to a safe public domain.

For the reasons mentioned in the preceding paragraphs, I find that the proposed development is consistent with the zone objectives and as such, also addresses cl 2.3(2).

Findings - height objectives

The height objectives in cl 4.3(1) are:

(a) to ensure that building height relates to the land's capability to provide and maintain an appropriate urban character and level of amenity,

(b) to ensure that taller development is located in more structured urbanised areas that are serviced by urban support facilities,

(c) to ensure that the height of future buildings has regard to heritage sites and their settings and their visual interconnections,

(d) to enable a transition in building heights between urban areas having different characteristics,

(e) to limit the impact of the height of a building on the existing natural and built environment,

(f) to encourage walking and decreased dependency on motor vehicles by promoting greater population density in urban areas.

Like the zone objectives, only certain of the height standard objectives are relevant. Objective (b) refers to "taller development is located in more structured urbanised areas" and "urban support facilities", objective (c) refers to heritage buildings and objective (f) refers to "encourage walking and decreased dependency on motor vehicles".

In relation to objective (a), I accept that the height of the building provides an appropriate urban character notwithstanding the breach of the height standard. The urban character I have adopted is that he anticipated by LEP 2013 rather than the predominant single storey development pattern that currently exists.

In my view, strict compliance with the development standards does not guarantee a satisfactory urban design outcome. While the exceedance of the height standard could be said to be numerically large, it is necessary to place this in some context when considering character. That context is that the exceedance is some 30 m from the Pacific Highway, 27 m from the rear boundary, occurs over 23% of the development footprint and 13% of the site area. The buildings proposed have different architectural forms and heights that provide a transition to the southern accommodation building so that the height of this building it is not overly obvious when viewed from the Pacific Highway. When considered with the other building forms on the site, the development with different but compatible architectural forms and heights complement each other. In my view, the southern accommodation building with the height exceedance will simply be seen as another building in the architecturally interesting range of buildings on the site. While the southern accommodation building would be visible when travelling in a southerly direction on the Pacific Highway; this view aspect is created largely by the existing low scale development that currently exists to the north. A building that has a form consistent with that envisaged by LEP 2013 would largely screen this building from this direction.

Ms Gordon's evidence that the site is unique, particularly in terms of its visual setting, with the development being "framed" by the extensive vegetation within the surrounding reserves and with the backdrop of the vegetation forms a strong and highly desirable element of the Pacific Highway is, in my view, overstated. I did not understand the departure from the height standard would affect the development being "framed" by the extensive vegetation within the surrounding reserves. The reliance on the backdrop of vegetation is not prescribed in any of the planning documents and given the distance of the vegetation from the site, it is not clear how this "forms a strong and highly desirable element of the Pacific Highway".

With the benefit of the site inspection, a complying development with a street setback of 6 m and a height of 8.5 m would likely block the views to this distant vegetation from locations near the site. In any event, it is unlikely that people travelling in cars along the Pacific Highway or even walking along this road and would see any relationship with this distant vegetation, let alone a strong relationship. Any relationship with the development on the site and people using the Pacific Highway, in cars or walking, would likely be with the appearance of the development in the streetscape, landscaping and the view corridors between different buildings on the site to the vegetation along the areas adjoining the creek lines that border the site.

While the southern accommodation building component of the development would be visible from travelling in a southerly direction, this is more a function of the low scale development on that the adjoining property to the north. A development that had a form anticipated by LEP 2013 would largely screen this part of the development from the direction.

Given the type of development and the absence of any residential development in the vicinity of the site, I agree that the lack of a contention relating to amenity impacts is correct. I note that the owner of the adjoining development to the north attended the site inspection and spoke in favour of the development.

Objective (d) refers to a transition in building heights between urban areas having different characteristics. It has a limited relevance as I presume that it relates to instances where different height requirements apply to adjoining or nearby sites. If this approach is adopted in this case, I accept that that there is an appropriate transition from the other buildings on the site to the southern accommodation building. Similarly, I see no reason why an appropriate transition could not be designed, if or when redevelopment of the property to the north occurs. Again, the owner of this property supported the proposed development.

Objective (e) raises the impact of the height on the existing natural and built environment. I have dealt with the impact on the built environment in preceding paragraphs. I agree with Mr Darroch that the height of the southern accommodation building creates no impacts on the natural environment. The building is located at least 27 m from the rear boundary that is located on the bank of the creek and a minimum distance of at least 30 m from the creek that forms the western boundary. In my view, these are more than adequate setbacks to accommodate the additional height of the southern accommodation building in an appropriate setting.

For the reasons mentioned in the preceding paragraphs, I find that the proposed development is consistent with the objectives relating to building height development standard.

Is compliance with the development standard is unreasonable or unnecessary?

I accept that the applicant has justified the contravention of the height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston J establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(4)(a)(ii)) 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. For the reasons in the preceding paragraphs I accept that the applicant has established this to be the case.

Are there sufficient environmental planning grounds to justify contravening the development standard?

For the reasons in pars 31 to 43, I am satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard.

Beside those matters identified on the preceding paragraphs, I also accept that the highly constrained nature of the site with considerable setbacks for riparian zones and bushfire protection along the creek lines makes the provision and distribution of a reasonable level of floor area over the site a potentially difficult task. In this case, the proposal does not seek to maximise the floor area but not unreasonably seeks to provide additional height (and floor area) in a location that does not have an unacceptable impact on other parts of the proposal, the character anticipated by LEP 2013 or adjoining properties.

Orders

The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 304/14 for the demolition of an existing motel building and structures and the construction of a new hotel, restaurant, wine bar, function room, pool, gym and cabana at 209 Pacific Highway, Coffs Harbour is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1 and M.

_________________

G T Brown

Commissioner of the Court

Decision last updated: 23 September 2014

Citations

Bramley v Coffs Harbour City Council [2014] NSWLEC 1194

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Medium Neutral Citation:	Bramley v Coffs Harbour City Council [2014] NSWLEC 1194
Hearing dates:	10,11 September 2014
Decision date:	23 September 2014
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Development Application No. 304/14 for the demolition of an existing motel and structures and the construction of a new hotel, restaurant, wine bar, function room, pool, gym and cabana at 209 Pacific Highway, Coffs Harbour is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and M.
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing motel buildings and structures - construction of anew hotel - restaurant - wine bar - function room, - pool - gym - cabana - whether height above development standard can be supported
Legislation Cited:	Coffs Harbour Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979
Cases Cited:	Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Wehbe v Pittwater Council [2007] 156 LGERA 446
Category:	Principal judgment
Parties:	Chris Bramley (Applicant) Coffs Harbour City Council (Respondent)
Representation:	Mr A Galasso SC (Applicant) Mr J Robson SC (Respondent) Gadens Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10350 of 2014