Owen v Coffs Harbour City Council

[2019] NSWLEC 1032

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Owen v Coffs Harbour City Council [2019] NSWLEC 1032
Hearing dates:	22 & 23 January 2019
Date of orders:	06 February 2019
Decision date:	06 February 2019
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	(1)   The appeal is upheld. (2)   Development Application No.0244/18DA for a two lot subdivision at 16 Meadowlands Crescent, Coffs Harbour is approved subject to the conditions in Annexure A. (3)   The exhibits, other than Exhibit 4 and the plans behind Tabs 1 and 2 in Exhibit A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: subdivision, compliance with requirements of DCP
Legislation Cited:	Coffs Harbour Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997
Texts Cited:	Coffs Harbour Development Control Plan 2015 Macquarie Dictionary
Category:	Principal judgment
Parties:	Grant Owen (Applicant) Coffs Harbour City Council (Respondent)
Representation:	Solicitors: R Fox, Fishburn Watson O’Brien (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/235884
Publication restriction:	No

Judgment

1. Mr Owen (applicant) lodged development application No.0244/18DA with Coffs Harbour City Council (Council) on 16 September 2017 seeking consent to subdivide an existing residential allotment into two lots. The Council refused consent on 4 April 2018 and the applicant is appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979.

2. The contentions in the case are whether the proposed subdivision would integrate with existing or proposed development on adjacent sites and is in the public interest. The primary concern of the Council is the introduction of a layback and driveway to service one of the proposed lots.

The site and locality

3. The site is legally described as Lot 49 in Deposited Plan (DP) 874038 and known as No. 16 Meadowlands Crescent, Coffs Harbour. It has a frontage of 21.72m to Meadowlands Crescent and rear boundary of 27.1m which fronts Charlesworth Bay Road. Site area is 1256m².

4. The site is located on the northern side of Meadowlands Crescent, a local road. When the original allotment was created as part of the Deposited Plan, a restriction to user was imposed on the lot and all of those lots with frontage to Charlesworth Bay Road, which prohibits vehicle access from that roadway. The terms of the restriction are as follows:-

“No direct access shall be available from the lot burdened to Charlesworth Bay Road.”

5. Development in the vicinity of the site comprises detached dwelling houses, primarily one and two storey dwellings that respond the slope of the land. There is a multi-dwelling housing development approximately 150m to the northwest of the site and a number of dual occupancy developments have recently been constructed. Lots within the original subdivision ranged in size from 751m² to over 1300m².

The proposal

6. The proposed subdivision would create two lots, Lots 491 and 492. Proposed Lot 491 would have frontage to Meadowlands Crescent and contain the existing dwelling house that is erected on the site. Its side boundaries would be 27.26m and 30.7m and the resultant site area would be 656m². Proposed Lot 492 would have a 27.1m frontage to Charlesworth Bay Road, side boundaries of 20.63m/28.46m and site area of 600m².

7. Vehicle access to proposed Lot 492 would be off Charlesworth Bay Road, a collector road, contrary to the terms of the restriction to user under the current DP. Both lots are generally regular in shape and would slope from to north to south.

The planning controls

8. The site is zoned R2 Low Density Residential under the provisions of Coffs Harbour Local Environmental Plan 2013 (LEP). The proposed subdivision is permissible with consent. Clause 4.1 of the LEP contains development standards for minimum lot size with 400m² being the minimum area prescribed. Both lots exceed the development standard.

9. The site is bushfire prone and a Bushfire Safety Authority as required under s 100B of the Rural Fires Act 1997 has been issued by the NSW Rural Fire Service.

10. Coffs Harbour Development Control Plan 2015 (DCP) applies to the site with Part C Subdivision Controls the most relevant section. Part D3 Residential Development is also relevant to determination of the application as the applicant proposes a building envelope to demonstrate the suitability of the proposed subdivision.

11. The objectives of the Subdivision Controls are:

“ To ensure that resulting lots have a practical and efficient layout to meet their intended use.

 To ensure that subdivision proposals provide appropriate connectivity for servicing vehicular, walking and cycling networks.

 To encourage lot configurations that maximise solar access and respond to the natural and built environment.”

12. The requirements of the clause are:

“1. Lots are to be of regular shape and comprise a suitable frontage to depth ratio to enable future development that is responsive to the land’s characteristics.

2. Subdivisions are not to comprise an access handle where more than two access handles will directly adjoin.

3. Road networks, subject to topographic constraints, are to be based on a grid pattern to encourage pedestrian connectivity.

4. Road hierarchy, layout and construction shall be designed in accordance with Council’s Development Specifications.

5. Access points off major roads are to be rationalised where practical.

6. Pathways are to be provided as an accessible integrated network of walking and cycling routes for safe and convenient travel.

7. Subdivisions comprising steep land shown on the Steep and Highly Erodible Land Map are to be designed so that smaller lots are located on north facing slopes and larger lots are located on south facing slopes.

8. Subdivisions are to be designed to integrate with existing or proposed development on adjacent sites.

9. Threshold and pavement treatments are to be designed to create an attractive streetscape.

10. The use of cul-de-sacs in the design of subdivisions should be minimised.”

13. Part C1.2 applies to subdivision of land in four residential zones including the R2 zone and has the following objectives:

“• To ensure that residential lots have a practical and efficient layout to meet their intended use.

• To ensure that subdivision proposals are responsive to constraints of the land and maintain streetscape integrity.”

14. The requirements of this clause are not in dispute and the experts agree that the objectives are met.

The issues

15. The contentions in the case are whether the proposed subdivision is consistent with the objectives and requirements of the DCP controls, in particular requirement 8 of Part C1.1 which states that subdivisions are to be designed to integrate with existing or proposed development on adjacent sites. The other contention is whether the subdivision is in the public interest or would establish an undesirable precedent in the immediate locality.

16. An earlier contention raised by the Council in relation to vehicular access off Charlesworth Bay Road and perceived safety risks with respect to vehicles entering and leaving the site was not pressed however it is an issue raised by objectors to the application.

The evidence

17. The matter commenced onsite with a view undertaken of the site, the locality and adjacent development. The view noted a number of informal gates that had been installed in the fencing along the southern side of Charlesworth Bay Road that provide both vehicle and pedestrian access to sites, contrary to the terms of the restriction to user that denies access to those lots. It is common ground that none of these access points have not been approved by the Council and that no formal driveway crossings or laybacks have been installed.

18. The only approved driveway crossing on the southern side of Charlesworth Bay Road from its eastern intersection with the Pacific Highway and that point is at 15 Firman Drive (a continuation of that road). There is a consistent grassed verge along the southern side of the roadway. There is a pocket of properties on the northern side of the road that do have their vehicle access from Charlesworth Bay Road and therefore there are a number of driveway crossings on this side of the roadway. That pocket is located opposite the site however, similar to the southern side, an area from the highway to approximately 90m east of the Timbertops Drive intersection has no direct access.

19. High fences are characteristic of both sides of the street, particularly in this pocket, with landscaping an important element along the whole roadway.

20. Evidence was heard from three objectors to the application. The issues raised are summarised as follows:-

• safety concerns regarding traffic and pedestrians using Charlesworth Bay Road, particularly children walking to an unmarked bus stops in the vicinity of the intersection with Timbertops Drive.

• The small lots are inconsistent with the original subdivision pattern of the area which comprised large lots.

• The introduction of a driveway on the southern side of Charlesworth Bay Road is out of character and if approved would set a precedent for other access points.

• Privacy concerns relating to any future dwelling that may be erected on proposed Lot 492 due to its steep slope.

• Loss of amenity.

• Loss of property value.

• Lack of street lighting.

21. The usual practice of this Court to hold a conciliation conference pursuant to the provisions of s 34 of the Land and Environment Court Act 1979 had not been followed in this case and therefore, the parties had not proffered alternate scenarios that may address the contentions.

22. At the conclusion of the site view consideration of an alternate proposal was proffered by the Council. That involved the creation of a driveway access point to the proposed rear lot from Meadowlands Crescent and was discussed on site. The planning experts measured the available distance between the existing dwelling and its eastern boundary and agreed that a distance of just over three metres was available. It was agreed that this was of inadequate width to comply with the Council’s standards for battle axe handles and, for such access to be provided, part of the garaging of the existing dwelling would require demolition. The applicant did not support the alternate proposal however the Council urged an “amber light” approach if the Court considered it a better solution. This matter was considered in the expert evidence.

23. Expert town planning evidence was heard from Mr C Pratt for the applicant and Ms R Givney for the Council. The experts agree that the proposed subdivision complies with the relevant development standards in the LEP. They also agree that a number of the allotments in the original 74 lot subdivision which the site forms part have been re-subdivided into lots ranging in size from 493m² to 853m² and that nine dual occupancy developments have been built in the neighbourhood, some of which have been the subject of the aforementioned subdivision consents.

24. The experts agree that the nine dual occupancy developments are generally on smaller lots and therefore provide a development that has a greater site coverage and building bulk than will result from the proposed subdivision.

25. By providing access from Charlesworth Bay Road rather than via an access arm between the existing dwelling houses at 16 Meadowlands Crescent (the site) and 1 Muirfield Close, the experts agree that a superior planning outcome is achieved in terms of privacy for the residents of the two dwelling houses and larger areas of private open space for the residents of both the existing dwelling house and future dwelling house in the land.

26. With regards to the proffered alternate of demolishing part of the garages of the existing dwelling so as to widen the area and provide for a driveway of at least 4.5m width, Ms Givney said this would be a worthy solution to the contentions in the case as landscaping could be provided along each side of the driveway and acoustic fences provided to address noise concerns.

27. Mr Pratt accepted that noise could be addressed in this manner but says the alternate proposal is inferior in that it has adverse amenity impact to adjoining properties, reduces the area of open space available for both the existing and proposed dwelling and would require provision of a turning area on proposed Lot 492 to ensure vehicles could drive in a forward direction down the 30.7m long access handle. He also stated that the proposal would involve unnecessary structural alterations to the existing dwelling and its lower roof level and would result in an unsatisfactory and unbalanced roof form.

28. In relation to this proposal, I accept Mr Pratt’s evidence and consider that the alternate would not result in a better planning outcome and should not be approved.

29. A hypothetical plan of how a dwelling could be sited on proposed Lot 492 has been prepared for the applicant and forms Appendix A to the Joint Report, Exhibit 3. The experts agree that the plan demonstrates how a dwelling could be erected on the land so as to comply with the provisions of the DCP. However, Ms Givney says that any dwelling erected to accord to the sketch would have adverse amenity impacts on the existing dwelling that would remain on proposed Lot 492.

30. This concern has been addressed through agreed conditions of consent that require the installation of privacy screens. The Council also agreed, that should consent be granted, it is appropriate to endorse the proposed building envelope so as to address the privacy concerns of objectors.

31. The experts agree, subject to imposition of those conditions that the proposed subdivision would comply with all relevant provisions of the LEP and DCP, other than Ms Givney stating that the access driveway crossing off Charlesworth Bay Road is unacceptable. It is this interruption to the streetscape that became the crux of the case.

32. It is the Council’s case that the provision of a driveway crossing to service the site is contrary to the DCP controls and results in unacceptable impacts. It contends that the subdivision has not been designed to integrate with the existing or proposed development on adjacent sites as required by requirement 8 in Part C1.1 of the DCP.

33. Ms Givney says that whilst a streetscape can be taken to include both sides of a road, you can also reasonably breakdown the various visual elements of a streetscape and assess potential impacts to them. Regardless, in this case it is clear from an inspection of Charlesworth Bay Road that both sides of the street have their own consistent and clear streetscape character. The northern side of the street is characterised by street trees, generous front building setbacks, front fences and vehicle driveways. The southern side of Charlesworth Bay Road is characterised by street trees, generous rear building setbacks, rear fences (broken only by informal access gates) and vegetation adjoining the rear fence line. There are currently no approved formal vehicle access points on the southern side of Charlesworth Bay Road. Creating the vehicle access point, as proposed, would interrupt a consistent and clear character and negatively impact on the existing streetscape. Should the proposal be approved it will form the only approved formal vehicle access point along the southern side of Charlesworth Bay Road.

34. Mr Pratt says the streetscape needs to be considered in terms of both sides of the road, the northern side of the road has some very large elevated dwellings and multiple vehicle accesses. There is nothing attractive about the continuous line of mostly 1.8m high colour bond and paling fences along the southern side of Charlesworth Bay Road. It is the mature landscaping in the street and in adjacent properties that dominate the streetscape. The proposed access to the subject property can be achieved without removal of any trees either in the road reserve or on the property. There is nothing offensive about a simple three metre wide driveway crossing. It is a normal and repeatable part of an urban streetscape.

35. The experts agree that the only other opportunity for a similar subdivision and vehicle access is 5 Muirfield Close. That is having regard to the lot sizes, location of existing dwellings and retained native vegetation.

36. The only remaining contention in the case is whether the terms of requirement 8 in Part 1.1 are met. This requires that subdivisions are designed to integrate with existing or proposed development on adjacent sites. The term “integrate” is not defined in the DCP.

37. Ms Givney say that integrate means to combine components of something in a complimentary way to come up with a satisfactory whole. This would have regard to lot size, streetscape elements, acceptable drainage and other relevant matters.

38. Mr Pratt agrees and says the components make the whole subdivision work. He considers that because the proposed subdivision has independent drainage, vehicle access, sewer service and comprises a regular lot shape and size that is not inconsistent with adjacent lot sizes that it integrates with the adjacent sites. He notes the requirement relates to adjoining sites and not the streetscape.

39. Ms Givney agrees the parts can integrate when the respond to each other so as to fit together but says that the provision of the formalised driveway crossing on the southern side of Charlesworth Bay Road is not complimentary.

40. Both experts agree that a simple interpretation of integrate would be to fit in.

Conclusion and findings

41. Having regard to the evidence and in particular the fact that the proposed allotments are of a size that is well in excess of the 400m² prescribed in clause of the LEP, I find the application should be approved.

42. The experts agree that, apart from the provision of a driveway crossing off Charlesworth Bay Road, the proposed subdivision accords with all relevant LEP and DCP requirements and that the resultant built form would accord with the character of the area. there are no contentions regarding the lot size, shape, impact on adjacent properties or availability of services. The only issue is the provision of the formal driveway crossing and whether it satisfies the requirements of the DCP.

43. In this regard I prefer the evidence of Mr Pratt. I agree that the requirement has regard to the existing and future development on adjacent sites rather than requires consideration of the streetscape and whilst the streetscape does adjoin the site, this is not the primary consideration.

44. I consider, based on the expert evidence that the subdivision has been designed to integrate with the development on adjacent sites. I accept that the term integrate is not defined in the DCP and that a simple consideration of whether the development “fits in” with adjacent sites is required.

45. Further analysis of the definition in the Macquarie Dictionary, 6th edition suggests that to integrate a subdivision would require the bringing together of parts into a whole or to make up of complete as a whole. I am satisfied that the proposed subdivision has been designed to bring together the two parts (those two parts being the proposed two lots) into the whole (the development on adjacent sites).

46. The provision of a driveway crossing on the southern side of Charlesworth Bay Road would not adversely impact the character of the area, particularly having regard to the location of driveway crossings adjacent to the site on the opposite side of the road. Driveways in this pocket of the roadway are not a foreign element. I consider that landscaping is the most important element in the streetscape with fencing also a dominant element. The proposal provides for the retention of landscaping and the provision of boundary fencing so as to retain these elements.

47. In addition to consideration of contentions in the case, I must have regard to those issues raised by persons who made submissions. In relation to the issues detailed above, I note the Council has considered the traffic and safety issues and not pressed this contention. I rely on the traffic report prepared by the applicant which states that the location of the proposed driveway would comply with Austroads standard for Safe Intersection Sight Distance on a 50kph speed limited road which is the case. The evidence is that even if the speed limit was increased to 60kph that the driveway location would comply.

41. The Council did not dispute this evidence. I consider that whilst the proposed driveway would be the only driveway on the southern side of Charlesworth Bay Road, it is located within that pocket of housing that does contain driveways and therefore, drivers should take a more cautious approach when travelling along that section of roadway.

42. It is clear from the agreed facts that the proposed lot size exceeds the 400m² minimum allowed under the LEP and is also greater than the area of a number of allotments within the locality.

43. It is also agreed that approval of the application does not lead to a precedent and that all applications that may propose the introduction of a new driveway would require merit assessment however it is unlikely that more than one other development may follow a similar path.

44. The proposed consent conditions are agreed by the parties and address the privacy and amenity concerns relating to any future dwelling that may be erected on proposed Lot 492 due to its steep slope.

45. There is no evidence to suggest any loss of property value.

46. The issue of the lack of street lighting is outside the area of consideration of this two lot subdivision.

Orders

54. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No.0244/18DA for a two lot subdivision at 16 Meadowlands Crescent, Coffs Harbour is approved subject to the conditions in Annexure A.

3. The exhibits, other than Exhibit 4 and the plans behind Tabs 1 and 2 in Exhibit A, are returned.

……………………….

Sue Morris

Acting Commissioner of the Court

Annexure A

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Amendments

13 February 2019 - Pursuant to UCPR 36.17, the slip rule, by the Court’s own motion, amend orders of 6 February 2019 so that Order 2 now reads as follows:

“Development Application No.0244/18DA for a two lot subdivision at 16 Meadowlands Crescent, Coffs Harbour is approved subject to the conditions in Annexure A.

27 February 2019 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties, amend orders of 6 February 2019 so that Condition 30 of Annexure A to the judgment now reads:

“Certification, prepared by a suitably qualified bushfire consultant, which certifies that any works required by Condition 29 above have been undertaken being provided to Council prior to the issue of a Subdivision Certificate.”

Decision last updated: 27 February 2019