Wilson v Coffs Harbour City Council - [2006] NSWLEC 20

Land and Environment Court

of New South Wales

CITATION: Wilson and others v Coffs Harbour City Council [2006] NSWLEC 20

PARTIES:
APPLICANTS
Roderick John Wilson, Joy Lesley Wilson, Darren Roderick Wilson, Nicole Bridley, Ronald Edward Butcher, Margaret Anne Butcher, Geoffrey Leaver and Paul Leaver
RESPONDENT
Coffs Harbour City Council

FILE NUMBER(S): 10533 of 2005

CORAM: Brown C

KEY ISSUES: Development Application :- construction of four two-storey dwellings and a community title subdivision - overshadowing - overlooking - drainage - loss of privacy - noise

LEGISLATION CITED: Coffs Harbour Local Environmental Plan 2000

CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444 ;
Parsonage v Ku-ring-gai Council [2004] NSWLEC 347

DATES OF HEARING: 17/01/2006

DATE OF JUDGMENT:
01/18/2006

LEGAL REPRESENTATIVES:
APPLICANTS
Mr J Wilson, litigant in person
RESPONDENT
Mr B Langler, solicitor
SOLICITORS
MBT Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

17 January 2006

10533 of 2005 Roderick John Wilson & Ors v
Coffs Harbour City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal of DA 1561/04 by Coffs Harbour City Council (the council) for the construction of four two-storey dwellings and a community title subdivision of these dwellings at 786 Pacific Highway, Sapphire Beach (the site).

The site

2 The site is Lot 2 in DP 1045219. It is irregular in shape with a maximum width of approximately 30 m and a total area of 2,462 sq m. The site is vacant and has a gentle slope at its western end and falls steeply at its eastern end with a pronounced escarpment between the different slopes.

3 The land to the north contains a two-storey residential flat building and the land to the south contains a large residential flat building known as “Sapphire Pines”. This building consists of one three-storey block and one five-storey block.

Relevant planning controls

4 The site is zoned 2A Low Density Residential under Coffs Harbour Local Environmental Plan 2000. The proposed use is permissible with consent in this zone.

5 The council’s Low Density Housing Development Control Plan (the DCP) also applies.

6 The site is subject to other planning instruments but the council raised no issues that relate to these documents.

The issues

7 The council filed a Statement of Issues containing 11 issues and a number of sub-issues but following further discussion between the parties and the provision of amended plans, the issues in dispute were limited to:

8 The other remaining issues relating to fill (Issue 2.5) and drainage (Issue 6) were addressed to the council’s satisfaction through the conditions, although there was some disagreement on the council’s drainage condition.

The evidence

9 The parties agreed to the appointment of Mr Paul Snellgrove as the Court appointed town planning expert. Additional town planning evidence was provided by Ms Lyn Green for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 20
Decision Date: 01/18/2006

CaseChat Overview and Summary

This appeal concerns the refusal of a development application for the construction of four two-storey dwellings and a community title subdivision at 786 Pacific Highway, Sapphire Beach, by Coffs Harbour City Council. The applicants, Roderick John Wilson and others, sought to appeal the council’s decision. The key issues in the case were overshadowing of adjacent units, particularly Unit 26 in Sapphire Pines, and overlooking of these units. Other concerns included fill and drainage, though these were addressed to the satisfaction of the council through proposed conditions.

The court had to determine whether the proposed development would unacceptably impact on the adjoining property, particularly in terms of solar access, as required by the Coffs Harbour Local Environmental Plan 2000 and its associated Development Control Plan. The evidence included shadow diagrams and expert opinions on the effects of the proposed development on the existing and future solar access of the adjoining units. The applicants argued that their development complied with the relevant standards and would not significantly impact the adjoining property, while the council maintained that the overshadowing would be unacceptable.

The court found that the overshadowing issue was critical and required a comprehensive assessment of both existing and proposed shadow impacts. The evidence presented did not sufficiently detail the existing shadowing from natural and built features, which was necessary to assess the cumulative impact. The court relied on precedents such as Pafburn v North Sydney Council and Parsonage v Ku-ring-gai Council, which emphasized the importance of considering all sources of overshadowing and applying planning standards with judgment. Given the significant loss of sunlight already experienced by the adjoining property, the court concluded that the proposed development would unacceptably impact the solar access of Unit 26, making the development inappropriate despite the applicants' efforts to mitigate the issue.

Based on the overshadowing issue, the court dismissed the appeal and refused the development application. The court also noted that other concerns, such as loss of privacy and noise, were adequately addressed by the proposed conditions. The exhibits were returned to the applicants.

Orders