Roberts v Coffs Harbour City Council

[2006] NSWLEC 1

Land and Environment Court

of New South Wales

CITATION:	Roberts v Coffs Harbour City Council [2006] NSWLEC 1
PARTIES:	Applicant: Christine Roberts by her agent Oldarb Pty Ltd Respondent: Coffs Harbour City Council
FILE NUMBER(S):	10249 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Development Control Plan :-
DATES OF HEARING:	25/07/2005, 26/07/2005 and 22/12/2005
DATE OF JUDGMENT:	01/12/2006
LEGAL REPRESENTATIVES:	Applicant: Mr A Galasso, barrister instructed by Ms J Studdert, solicitor of Deacons Respondent: Mr J Mulder, solicitor of MBT Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

12 January 2006

10249 of 2005 [No 2] Christine Roberts by her agent Oldarb Pty Ltd v Coffs Harbour City Council

JUDGMENT

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Senior Commissioner: This is an appeal against the deemed refusal of a development application to erect a residential project containing 131 dwellings on lot 210 DP1044292, known as 1206 Pacific Highway, Moonee. The matter was heard on 25 and 26 July 2005, following which I published my findings on 2 August 2005, granting leave at the same time to the applicant to rely on amended plans that would respond to those findings. The applicant submitted amended plans on 10 October 2005.

2 Following the exhibition of the amended plans, the council received 12 submissions and a petition. The matter was listed for further hearing on 22 December 2005. This second judgment deals with the amended plans. It includes parts of the findings of 2 August 2005 in order to be comprehensible on its own.

The site

3 The site is on the eastern side of the Pacific Highway, just south of its junction with Moonee Beach Road. It has an area of 3.15ha. It has falls from the edges towards the centre and contains scattered native vegetation. There is an 8-metre wide right-of-way along the Highway boundary. To the north, part of the site adjoins a Coles supermarket under construction. To the south it adjoins a residential property and an animal hospital. To the east it adjoins the rears of residential properties in Woodhouse Road.

4 The site is close to the village of Moonee and within an area designated for the growth of the village.

The proposal

5 The applicant proposes to erect a medium-density residential development. The original application proposed 143 dwellings. Responding to criticism, the applicant reduced the number before the July hearing to 136. During the hearing, it reduced it by a further dwelling to 135. The amended proposal before the Court in December 2005 contains 131 dwellings.

6 Sixty-two of the dwellings are proposed in three apartment buildings of three-storeys (Blocks 1, 2, 3) and one of two-storeys (Block 4). The remainder are two-storey attached dwellings over basement parking (Blocks 5, 6, 7, 8, 9 and 10), two-storey townhouses with ground-level parking, and single-storey attached dwellings (villas).

7 Access is proposed through a collector road connecting to Mooney Beach Road. Along the Highway boundary the applicant proposes a 3-metre high acoustic barrier against traffic noise.

Relevant planning controls

8 The North Coast Regional Environmental Plan (the North Coast REP) applies to the site. State Environmental Planning Policy 65 – Design of Residential Flat Buildings (SEPP 65) applies to Blocks 1, 2, 3 and 4.

9 The Coffs Harbour Local Environmental Plan 2000 (the LEP) zones the site Business 3G. Among other uses, the zone permits multi-unit housing with consent. The LEP contains no development standards that are relevant to the proposal.

10 The Moonee Development Control Plan (the Moonee DCP) and the Medium Density Housing Development Control Plan (the Medium Density Housing DCP) both apply.

The court-appointed expert

11 The Court appointed Mr L Fletcher as the planning expert. Mr Fletcher gave evidence at the July and December hearings.

The issues

12 In its Statement of Issues for the July hearing, the council identified 15 issues. As a result of case management, the Court grouped these issues under seven headings. The Court gave leave to the council to add an eighth issue dealing with traffic and parking. The eight issues were:

1. Are the scale and height of the proposal excessive?

2. Is it justified to exceed the number of dwellings permitted by the Moonee DCP?

3. Is the separation from the rears of adjoining properties facing Woodhouse Road adequate?

4. Is the design repetitive?

5. Are the front, rear and side setbacks adequate?

6. Are the private open spaces adequate?

7. Is there adequate information about subdivision?

8. Is the access to Pacific Highway appropriate, is the internal parking sufficient, and should there be a turning bay for buses?

13 At the July hearing four further issues arose, namely:

· The effect of the noise from the kennels of the pet hospital;

· The treatment of noise after the upgrading of the Pacific Highway;

· Solar access to the proposed dwellings;

· Adequacy of the application in describing the proposal.

14 At the second hearing in December 2005, the council’s advocate, Mr J Mulder, agreed that two of the first eight issues, and all four of the additional issues raised at the July hearing, have been resolved. This left six issues for debate. The issues were similar to those at the July hearing, though they are expressed differently, either because the council was satisfied with the resolution of part of the issue or because the proposal had changed:

1. Are the scale and height of the proposal excessive?

2. Is the proposal an overdevelopment?

3. Is the design repetitive?

4. Are the front setbacks adequate?

5. Are the private open spaces adequate?

6. Is the access to Pacific Highway appropriate?

The objectors

15 On 25 July 2005 the Court heard the evidence of nine objectors. On 22 December 2005 the Court heard the evidence of Mrs E Winckle of 1026c Pacific Highway and Mr D Woodbury who represented the Moonee Action Group. Mr Woodbury said that the Group still opposed the amended proposal because it was not in the best interest of the community or the environment. In essence of the objection went to the proposal’s density, which Mr Woodbury and his Action Group saw as too high.

16 I accept that the Moonee Action Group does not like medium density development. However, I am required to give major weight to the Moonee DCP, which sets a density range for this site, and the proposal is well within that range. It is true that the character of the development will be different from the rest of Moonee Beach, but that does not mean that it will be any worse. In any case, I must assume that, in setting a minimum density of 119 dwellings for the newly zoned areas of Moonee Beach, the council wanted the further growth of the village to be compact rather than low-density housing.

17 Mr Woodbury’s major complaint was that, despite the maximum height of 6m stipulated by the DCP, three apartment buildings in the project are three-storeys high. However, those three buildings are close to the Highway and will protect the rest of the development from traffic noise. They are also close to the new shopping centre, which has a much larger scale than the apartment buildings. The fourth apartment building, which is close to single residences, has been reduced to two storeys.

18 Mr Woodbury also raised more minor concerns, such as the height of fencing at the edge of the development. The applicant responded by rasing the height.

Height and scale

19 It is common ground that the Moonee DCP and the Medium Density Housing DCP contain the relevant height provision for the site. The control is generally 6m and generally two-storeys. The Mooney DCP contains an additional statement, namely:

Applicants are to comply with the controls unless it can be demonstrated that an alternate solution to all or any of the controls will be a better approach to meeting the objectives of this DCP.

20 At the July hearing, the four apartment buildings, Blocks 1, 2, 3 and 4, exceeded 6m and two-storeys. Their height varied but reached well above 10m. The resident objectors perceived them as four-storeys high because the basement car park protruded from the ground. Blocks 1 and 2 are adjacent to the Coles supermarket on an east-west axis. Block 3 is south of Blocks 1 and 2, also on an east-west axis. Block 4 is further south and is on a north-south axis, parallel to the Highway.

21 In my decision of 2 August 2005, I found that there was justification for varying the height provisions of the two DCPs in respect of Blocks 1, 2 and 3 for the following reasons:

· The word “generally” implies that the 6m-limit does not have to be applied to all parts of the development.

· Blocks 1, 2 and 3 are in close proximity to the Coles supermarket, which has a height comparable to a three-storey building. The supermarket overshadows the north side of Blocks 1 and 2, and therefore only the third floor is likely to receive proper sunlight.

· If all four buildings were reduced to two storeys, the project would lose 12 dwellings, assuming the ground floors were removed. This would reduce the yield to 123, which is only slightly over the minimum stipulated by the Mooney DCP. Given the general emphasis on maximising the potential of land (also stated in the North Coast REP), the objectives of the Mooney DCP would not be met as well as they would with a higher yield.

· There does not appear to be any adverse impact resulting from the three-storey nature of Blocks 1, 2 and 3.

22 As regards Block 4, my finding was that the third floor of this building was likely to be subject to noise from the Highway despite the 3m high acoustic wall. It is close to an existing house, 1208 Pacific Highway. It is also closer to the two-storey townhouses within the project than the other blocks. I did not think that it would be justified to depart from the general 6m-height limit of the Mooney DCP in respect of Block 4.

23 In the amended proposal before the Court at the December hearing, the third floor of Block 4 had been removed. The basement levels of all four blocks were lowered. In Mr Fletcher’s opinion, this complies with the findings of the August 2005 decision. I accept his evidence.

Overdevelopment

24 In Mr Fletcher’s opinion, there is some inconsistency in the planning controls that apply to the site in relation to the number of dwellings. The most relevant document, the Moonee DCP provides for a minimum yield of 119 and a maximum yield of 135. The proposal’s yield at the December hearing was 131. This is within the required range and there can be no valid issue arising from it.

25 The requirement in a planning instrument or development control plan for a minimum, as against a maximum yield is unusual. While there was no evidence on this aspect, I have assumed that there were sound planning reasons for this novel approach, namely to accommodate the growing population of the coastal strip in reasonably compact housing and thus prevent the coast becoming a continuous suburban sprawl.

Repetitiveness

26 In my August decision I found that the issue of repetitiveness arose out of poor presentation. The perspectives before the Court at the December hearing (which did not exist at the July hearing) bore out this finding. The proposal will have variety through materials and colour, even if the form will be repetitive. To an extent this is an inevitable outcome of medium density, where a single designer is responsible for the design of more than a hundred dwellings. In traditional low-density development there would be a hundred designers. Amazingly, many low-density suburbs still appear monotonous, despite the fact that every house has had a different designer.

27 In Mr Fletcher’s opinion, this issue has been resolved. I accept his evidence.

Front setbacks

28 In my August decision I accepted Mr Fletcher’s opinion that all dwellings with a single garage should set the garage back at least 5.5m in order to provide an additional parking space. The revised proposal complies with this requirement. I note that the council still maintains that the front set backs are inadequate and will not result in a leafy and soft appearance. I accept that the character will be urban, rather than suburban; however, as I have said before, this is an outcome of the density set by the Moonee DCP.

Private open spaces

29 In my August decision I accepted Mr Fletcher’s evidence that the balconies of the dwellings in Blocks 1, 2, 3 and 4 were adequate, but that the private open spaces of the dwellings in Blocks, 5, 6, 7, 8, 9 and 10 were not. The amended proposal before the Court in December has increased the private open space. Mr Fletcher now considers them adequate and sufficiently in line with the requirements of the Medium Density Housing DCP. I accept his evidence.

The Pacific Highway/Moonee Beach Road intersection

30 The Roads and Traffic Authority (RTA) commented on the proposal in letters dated 27 June and 9 November 2005. In both letters the RTA objected to the approval of the application on the grounds that it added traffic to the intersection of the Pacific Highway and Moonee Beach Road.

31 Mr L Vickery, the Road Safety and Traffic Safety and Traffic Service Manager of the Northern Region Grafton RTA gave evidence on this issue, saying that the intersection is expected to fail in 2011 due to increased traffic. The traffic projections are based on additional traffic generated by the new shopping centre as well as by an annual addition of 80 houses in Moonee Beach. While initially Mr Vickery said that the 80 houses were based on applications that have already been approved, in cross-examination he changed his evidence, saying that the 80 dwellings were what council expected to approve in the future.

32 Mr Vickery relied on a report prepared by Northern Transport Planning and Engineering Pty Ltd, titled Pacific Highway/Moonee Beach Road – Intersection Analysis with Existing and Potential New Development. That report makes it clear that only the first 80 dwellings have been approved, while the remaining 400 until 2011 will result from new applications. In the circumstances, despite the views expressed by the RTA, I see no justification to deny consent to this application. The intersection still has a capacity for 400 additional dwellings that have not been approved (and for the majority of which there have not yet been applications).

Conditions

33 The parties were in dispute about several conditions. Draft deferred commencement condition 1 would delay the approval of this development until the upgrading of the Highway/Mooney Beach Road intersection has been completed. For the reasons stated in the section above, the condition is not imposed.

34 Draft deferred commencement condition 2 would require an archaeological investigation of the site. The council’s planner, Mr G Blackburn, could not suggest why the council thought that there might be items of archaeological value buried under the site. The council did not routinely impose the condition. The condition is not imposed.

35 Three draft conditions require the applicant to do works on the collector road outside the site, where it adjoins the shopping centre. Mr Blackburn could not explain why the developer of the shopping centre was not required to undertake the works on the road adjoining its site. The condition is not imposed.

36 Draft condition 31 requires the applicant to provide works that are part of the proposal. The condition is redundant and is therefore not imposed.

37 Draft condition 37 requires six elements of Safer by Design to be incorporated in the proposal. As an example, the first element is “consideration should be given to securing the car park from unlawful entry”. The condition is expressed vaguely and would not provide the required level of certainty.

38 The above does not suggest that such elements should not be incorporated in the design of a residential estate. However, the way to incorporate safety considerations in a design is to include the requirement in a development control plan and then to ensure that they find concrete expression in the design. For example, the car park may require a security gate.

Conclusion

39 The proposal was the subject of debate during two days’ hearing in July 2005. The Court published its findings on 2 August 2005 suggesting changes. The applicant has responded to the suggested changes and the Court-appointed planning expert, Mr Fletcher now finds the proposal acceptable. This is also in line with my assessment. There is therefore no impediment to the approval of the proposal.

40 I note that the council and the Moonee Beach community remains opposed to the development. It seems to me that this is because the character of medium density housing is different from the village’s existing character. However, the Moonee DCP specifically foresees this new character for the extension of the village and the applicant has merely responded to the DCP’s requirements. The only aspect in which it could be argued that it has not fully complied with the DCP is the third storey on three apartment buildings, which adjoin the Pacific Highway and are close to the bulky buildings of a major shopping centre. In my opinion, this single departure is justified.

41 For the above reasons the appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to erect a residential project containing 131 dwellings on lot 210 DP1044292, known as 1206 Pacific Highway, Moonee is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 11, T and U.

______________
Dr John Roseth
Senior Commissioner