Roberts v Coffs Harbour City Council

[2005] NSWLEC 414

Land and Environment Court

of New South Wales

CITATION:

Roberts v Coffs Harbour City Council [2005] NSWLEC 414
This decision has been amended. Please see the end of the judgment for a list of the amendments.

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 :- departure from planning standards
inadequacy of information

DATES OF HEARING:

25/07/2005 and 26/07/2005

 
DATE OF JUDGMENT: 

08/02/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr A Galasso, barrister instructed by Ms J Studdert of Deacons

Respondent:
Mr J Mulder of MBT Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

2 August 2005

10249 of 2005 Christine Roberts by her agent Oldarb Pty Ltd v Coffs Harbour City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal of a development application to erect a residential project containing 143 dwellings on lot 210 DP1044292, known as 1206 Pacific Highway, Moonee.

The site

2 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.

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

The proposal and its history

4 The applicant proposes to erect a residential development containing 143 dwellings. Responding to criticism, however, shortly before the hearing it reduced the number to 136. During the hearing, it reduced it by a further dwelling to 135.

5 Sixty-six of the dwellings are proposed in four three-storey apartment buildings (Blocks 1, 2, 3 and 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).

6 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

7 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.

8 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.

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

The issues

10 In its Statement of Issues the council identified 15 issues. As a result of case management, the Court grouped these issues under seven headings. During the week preceding the hearing, 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?

11 During the 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.

The objectors

12 The Court heard the evidence of nine objectors, four of whose properties adjoin the site. Mrs E Winckle of 1208 Pacific Highway lives on a property that adjoins the site on its southeast corner and accesses her land through the right-of-way through the site. She was concerned about Block 4, a three-storey apartment building being close to her, and the effect of the acoustic wall on her access. Mrs S Corsi of 22 Woodhouse Road owns two properties that adjoin the site to the east. She objected to the single-storey dwellings being only 3m from the common boundary. In her opinion, the proposal would destroy the area’s character as it contained too many dwellings, not enough parking and no play areas. She would like a 2.2m high fence on the common boundary. Ms J Hambly of 14 Woodhouse Road, whose in-laws live at No 16, had the same opinion. Mr P Bourne, who runs the pet hospital that adjoins the site to the south, said he was concerned about the effect of noise from his kennels on future residents, particularly the complaints that he will receive.

13 Mr D Woodbury, a representative of the Mooney Action Group, had the following criticisms:

· The apartment buildings do not comply with the two-storey restriction of the Mooney DCP. In his opinion, they are four-storey.

· The proposal does not contain enough open space.

· The acoustic walls will not solve the noise problem, as grade separation will raise the level of the highway.

· The proposal has narrow roads, narrow frontages, not enough parking, and no footpaths.

· The site has water table problems. The stormwater plan is inadequate. No rainwater tanks are shown.

· Not all the dwellings provide 32m2 of open space. The balconies are too small.

· The front, side and rear setbacks of the Mooney DCP are not met.

· The buildings are more than 30m long. The design is repetitive, institutional and the houses have no eaves.

· Solar access is poor. Kitchens and bathrooms are mechanically ventilated. The subdivision type is not indicated.

· There are problems with waste collection.

14 Mr K Vidler, the licensee of the Moonee Beach Hotel, said that he did not like the character of Moonee Beach changing. Mrs K and Mr G Cooper, said that there were no facilities for the many people in the proposal. Mr P Loxley said that “cheap dwellings would attract cheap people”. In my opinion, the last concern is not valid and I have disregarded it.

15 Putting aside the concern with the internal arrangements of the proposed dwellings (which, in my opinion, is not a proper concern of the objectors), the main objections appear to be to the three-storey high apartment blocks, the number of dwellings, the small setbacks from the boundaries, the lack of parking and the lack of information on subdivision. These duplicate the council’s issues and are dealt with below.

Adequacy of information

16 The Court-appointed planning expert, Mr L Fletcher, provided a written report and oral evidence. His report contains a long list of deficiencies in the information provided with the application. During the hearing, my own perusal of the drawings suggested not only that much of the necessary information was missing, but also that the information that was provided was inaccurate and inconsistent. The application falls far short of the list included in the Court’s Practice Directions. The result of the information shortfall was that even if the proposal were otherwise acceptable, it did not provide sufficient certainty to be approved.

17 In addition, there was an absence of any kind of representation that could be understood by lay people of what the proposal would look like. The incomplete drawings that were provided gave a much worse impression of the proposal’s appearance than it is likely to be in reality. In my opinion, this was partly responsible for the large number of objectors and the strength of negative feelings towards the proposal. Given that existing residents often view new proposals with suspicion, in this case the applicant has done its best to turn that suspicion into hostility. If the proposal is to be exhibited in an amended form, the applicant should endeavour to present it in a more user-friendly way and include a model or at least photomontages and sketches.

18 One of the many inadequacies of the application was the landscaping plan that ignored all private areas. The applicant is required to indicate the landscaping for the whole of the site, not only for the communal areas.

19 I note also that the application was accompanied by an assessment under SEPP 65, which was so perfunctory as to be of little use to the council or the Court. The dwellings should be assessed with reference to the Residential Flat Design Code attached to the SEPP. The purpose of the assessment is to provide an honest picture, not a justification.

Height and scale

20 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.

21 The four apartment buildings, Blocks 1, 2, 3 and 4, exceed 6m and two-storeys. Their height varies but reaches well above 10m. The residents perceived them as four-storeys high because the basement car park protrudes 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.

22 In my opinion, there is 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.

23 As regards Block 4, the third floor of this building is 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 do not think that it would be justified to depart from the general 6m-height limit of the Mooney DCP in respect of Block 4. If the ground floor of Block 4 were removed, the yield would be 131, which is about 10% more than 119, the minimum stipulated by the Mooney DCP.

24 In my opinion, Blocks 1, 2 and 3 may remain three-storey high, but Block 4 should be reduced to two storeys. The applicant should pay attention to lowering the basement parking as far as practicable on all four buildings, thus minimising the protrusion from the ground level and thus raising the height of the whole building.

Number of dwellings (density)

25 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. I understand that the council and the applicant both accept this view. In the event the most relevant document, the Moonee DCP provides for a minimum yield of 119 and a maximum yield of 136. The proposal’s yield (as amended during the hearing) was 135. As a consequence of removing four more dwellings from Block 4, the yield will be 131. This is within the required range and there can be no valid issue arising from it.

26 I should add that 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.

27 However, while I accept that it is important for this proposal’s yield not to fall below the minimum stipulated in the Moonee DCP, I stress that the yield must be achieved without compromising the amenity of the dwellings, in particular their private open space.

Separation from adjoining low-density housing

28 The single-storey villas that adjoin the rears of properties in Woodhouse Road were set back 3m from the common boundary. During the hearing the applicant increased the distance to 5m, providing a 2m wide strip for landscaping.

29 Mr Fletcher considered 5m to be adequate and I agree with him.

Repetitiveness

30 In my opinion, the issue of repetitiveness arises out of poor presentation. If the dwellings are similar, there is no need to make them appear different. Architectural expression on the outside should express the functions inside. If the function is the same, so should be its expression.

31 In any case I note from drawings, inadequate though they may be, that there will be variation in the appearance of the attached buildings.

Front rear and side setbacks

32 In Mr Fletcher’s opinion, all dwellings with a single garage should set the garage back at least 5.5m in order to provide an additional parking space. I accept this evidence. A revised proposal should comply with this requirement. I understand that this resolves all setback issues, except in so far as they may relate to the size and location of the private open spaces.

Private open spaces

33 Mr Fletcher considered that the balconies of the dwellings in Blocks 1, 2, 3 and 4 were adequate, but doubted that the private open spaces of the dwellings in Blocks, 5, 6, 7, 8, 9 and 10 were adequate. The drawings do not contain enough detail to allow an accurate assessment of this issue; however, it appears that the private open spaces are far short of the 32m2 required in the Medium Density DCP. The levels of the private open spaces are not shown; the levels of the dwellings themselves appear to be wrong. This aspect of the design appears to have had almost no consideration.

34 Any revised proposal should fully comply with the Medium Density Housing DCP in respect of private open space. The solar aspect of these spaces should be given particular attention. Fences and retaining walls must be shown accurately and their shadow impact taken into account.

Subdivision details

35 While the original application provided no detail on future subdivision, the applicant indicated during the hearing that it intends to use a combination of Community and Strata title. In my opinion, this approach is valid and should be included as a condition in any future consent.

Traffic and parking

36 This issue refers to the proposal’s connection to the Pacific Highway, to the internal provision of parking and to a bus turning bay. When the proposal was sent to the Roads and Traffic Authority of NSW (the RTA), the response from the RTA was negative. In order to approve this development, the Court would require either a letter indicating the RTA’s acceptance of the traffic arrangements or evidence as to why the Court should grant consent without it.

37 The issue of internal parking is likely to be resolved with the provision of off-street parking for the dwellings with a single garages. The applicant indicated that it would provide a temporary parking bay for buses until the collector road is completed towards the south.

Noise from the kennels

38 The council and Mr Bourne are concerned about the impact of noise from the kennels. Since the animal hospital has also been rezoned for urban use, the future of the hospital is uncertain. In view of the uncertainty, the best solution would be a condition requiring that purchasers of properties likely to be affected be made aware of the noise.

Noise from the Highway

39 While the application included an acoustic report, that report does not state that noise conditions in the apartments will (rather then could) be acceptable. The Court needs an acoustic report that includes such a statement. Any acoustic treatment should be part of the application. The applicant should not rely on the council to specify the treatment in conditions of approval.

Solar access to the dwellings

40 The application included almost no information on solar access. A thorough assessment under SEPP 65 referred to above would deal with the issue in respect of the dwellings in Blocks 1, 2, 3 and 4. As regards the other dwellings, the application should include a full assessment of their thermal performance, including how north-facing glass would be shaded in the summer. It would be advisable to subject the dwellings to an assessment under BASIX, even though BASIX does not strictly apply to the application.

Conclusions

41 The council submitted that the application is so deficient that it should be refused. The applicant submitted that, while the application cannot be approved, the Court should publish its findings, thus allowing the parties to make further submissions on how the matter should proceed.

42 I have accepted the applicant’s submissions, mainly because the zoning of the land makes it likely that if this application is refused, another will be lodged in the near future. It is more efficient for both parties if the matter proceeds.

43 The council requested costs in case of refusal. I do not think it is appropriate to award costs before the conclusion of a case; however I indicate that, if the applicant is given leave to amend the application, in my opinion, the council should be compensated for the cost of re-assessing the application. This is partly because the proposal, as originally submitted contravened the council’s DCPs without providing justification and partly because the application was so short on information that it did not allow for proper assessment. If the parties came to an arrangement in this regard, it would avoid the cost of arguing over costs. If the matter does eventually come to the Court for a decision, I expect the council to indicate its costs as a lump sum.

Directions
The Court directs the parties to indicate to the Registrar on how they propose to progress the matter,
· by eCourt before 8 August 2005, if they reach agreement;
· by telephone call over on 8 August 2005, if they do not reach agreement
Exhibit C is returned to the applicant. .

______________
Dr John Roseth
Senior Commissioner

04/08/2005 - Quote attributed to the wrong person - Paragraph(s) 14