Land and Environment Court New South Wales Medium Neutral Citation: GDK Property Investments Pty Ltd v Coffs Harbour City Council [2021] NSWLEC 1788 Hearing dates: 30 August 2021 Date of orders: 22 December 2021 Decision date: 22 December 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders (see [25]) Catchwords: DEVELOPMENT APPLICATION – boarding house development – contentions resolved – consideration of objector submissions - orders by consent. Legislation Cited: Coffs Harbour City Centre Local Environment Plan 2011, cll 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 7.1, 7.2, 7.11 7.12 Environmental Planning and Assessment Act 1979, ss 3.42, 4.15, 4.16, 4.17, 8.7 Environmental Planning and Assessment Regulation 2000, cl 77 Local Land Services Act 2013, s 60O State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 -Remediation of Land, cl 7 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Texts Cited: Coffs Harbour Development Control Plan 2015 Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy, April 2021 Land and Environment Court of NSW Practice Note – Class 1 Development Appeals Category: Principal judgment Parties: GDK Property Investments Pty Ltd (Applicant) Coffs Harbour Council (Respondent) Representation: Counsel: A Pickles (Applicant) S Patterson (solicitor)(Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/353824 Publication restriction: No Judgment 1. COMMISSIONER: GDK Property Investments Pty Ltd (the Applicant) has appealed the refusal by Coffs Harbour City Council (the Respondent) of its development application 0170/20DA, made with owner's consent, seeking consent for the demolition of existing structures and construction of a two storey boarding house (the Proposed Development) at 2A Gundagai Place, Coffs Harbour (the Subject Site). 2. The Subject Site is zoned R3 medium density residential under the provisions of cl 2.3 of Coffs Harbour City Centre Local Environment Plan 2011 (CHLEP) and development for the purposes of a boarding house is permissible in that zone. 3. On 25 June 2021, the Applicant was granted leave by the Court to amend its development application and to rely on amended plans and supporting documentation. 4. The Applicant's amended plans were said to reduce potential environmental impacts that may arise as a consequence of the Proposed Development. 5. The amendments for which leave was granted on 25 June 2021 included: 1. a reduction in number of boarding rooms in the proposed Development from 11 to 10; and 2. a reduction in the number of potential residents of the Proposed Development from 19 to 18; 3. a reduction in the provision of car parking on the Subject Site from six spaces to five; 4. the provision of an accessible boarding room on the ground floor. 1. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act 2. At the commencement of the hearing of the appeal, the Parties advised that they now sought final orders by consent, as all contentions in the appeal had been resolved. They also confirmed that the Court's requirements for orders to be made by consent had been satisfied, noting that: 1. The Court's Practice Note – Class 1 Development Appeals (at par 99), provides as follows in relation to applications for final orders by consent of parties in circumstances where the appeal concerns the refusal of a development application: "[99] Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary." 1. During the hearing, the Respondent advised that it had notified all objectors on 23 August 2021 that this appeal had been listed for orders by consent on 30 and 31 August 2021, and that the hearing would commence via Microsoft teams at 10am. 2. The Respondent also advised that: 1. it had shared with the objectors in advance of the hearing, the proposed consent orders to be sought by the Parties and the proposed conditions of consent that would be presented to the Court; 2. it had also confirmed to the objectors that, based on the advice of Parties' experts, and having considered their submissions, the Parties had resolved all contentions in the appeal. 1. I am satisfied that the Respondent made all reasonable efforts, including by way of notification, to contact objectors to the Applicant's modification application and to ensure that they were advised of the time and date of the consent orders hearing, and of the opportunity to make representations to the Court in these proceedings. 2. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, a site inspection was not undertaken and objector submissions were received at hearing which was conducted via Microsoft Teams. Notifications and objector submissions 1. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and the provisions of Coffs Harbour Development Control Plan 2015 (CHDCP), the Proposed Development was placed on public exhibition by the Respondent from 25 September 2019 for a period of twenty eight days. Twelve submissions were received in response to that notification. 2. The application was further notified 19 December 2019, following the Applicant's provision of amended plans and ten submissions were received in response to that notification. 3. Following the Court's grant of leave to amend and for the Applicant to rely on further amended plans and documents, on 25 June 2021, the Applicant's development application was again notified and three submissions were received in response. 4. At the hearing, the Respondent tendered written submission provided by: 1. Mr Raymond and Ms Susan Hone, residents in the vicinity of the Subject Site, who expressed concerns in relation to traffic generation and on streetcar parking that might be associated with the Proposed Development; and 2. Mr Chris and Ms Lindsie Pemberton-Lewis, who noted that they had made previous submissions in relation to the Proposed Development and requested that, should consent be granted to the Applicant's development application, as amended, the manager of the on-site manager supervising any demolition works on the Subject Site provide advice to them in advance of the those works commencing. Contentions 1. The Respondent advised that, as directed by the Court in preparation for the hearing of the appeal, the Parties' expert planners, Mr Adam Byrnes, for the Applicant, and Mr Joe Vescio, for the Respondent, had participated in joint reporting which concluded on or about 16 August 2021, and a joint report of those experts was filed with the Court on that date. 2. Within that joint expert report, the Parties' expert planners had agreed that all outstanding contentions in the appeal were resolved, subject to the imposition of conditions of consent, certain amendments being made to the Applicant's Plan of Management, and which had now been completed, and hearing from resident objectors (see above at [15]). 3. The Parties further confirmed that they accepted the advice of their experts that the contentions in the appeal were resolved subject to conditions, and they submitted that consent should be granted to the Applicant's development application on the basis of their agreed conditions of consent tendered by the Parties. 4. The principal contention in the appeal concerned the character of the Proposed Development and whether it was compatible with the character of the local area. The Parties' expert planners had agreed that the Proposed Development, as amended, was now compatible with the character of the local area, noting that: 1. notwithstanding the predominant single storey nature of residences in the area, the Subject Site was zoned R3 medium density residential and was, therefore, an area in transition; 2. the Applicant's amended plans had refined the presentation of the Proposed Development to the street through the use of appropriate materials, the inclusion of landscaping within the driveway design, and the design of front gates to the development; 3. the Proposed Development would not hinder the future development of the area consistent with the intent of its R3 medium density zoning. 1. The Parties also advised that contentions raised in relation to traffic and parking matters, which had also been identified by objectors as being of concern to them, had been considered and satisfactorily resolved by the Applicant's expert traffic engineer, Mr McLaren, who had provided an expert report tendered as evidence at the hearing. 2. The Parties advised that the basis for resolution of other contentions in the appeal, and the satisfaction of relevant statutory development standards and controls was as follows: 1. the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to development on the Subject Site and to the Proposed Development which is for construction of a boarding house on land zoned R3 medium density residential, and in relation to these the Parties agree, and I am satisfied that: 1. the Proposed Development complies with each of the the 'must not refuse' provisions at subcll 29(1) and 29(2) of SEPP ARH; 2. in respect to the development standards at cl 30 of SEPP ARH: 1. the proposed Development includes a communal living room as required under subcl 30(1)(a); 2. none of the proposed 10 boarding rooms in the proposed Development exceeds 25m2 gross floor area, excluding kitchen and bathroom facilities, as required under subcl 30(1)(b); 3. the Applicant's plans and plan of management for the boarding house confirm that the use of each boarding room is limited to a maximum of 2 adult lodgers, as required under subcl 30(1)(c); 4. adequate bathroom and kitchen facilities are provided for the use of each lodger, as required under subcl 30(1)(d); 5. a boarding house manager is provided as part of the Proposed Development, and as confirmed within the Applicant's proposed plan of management for the boarding house, notwithstanding there are less than 20 lodgers and 6. at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms, as required under subcl 30(1)(h); 1. the design of the proposed development is compatible with the character of the local area (see above at [19]) as is required to be considered under cl 30A of SEPP ARH. 1. in relation to the provisions of State Environmental Planning Policy No. 55 – Remediation of Land (SEPP55): 1. the Proposed Development is not a development on land of the sort identified subcl 7(4) of SEPP55, including land of the type identified in Table 1 of the contaminated land planning guidelines as referred to in that clause; 2. further, the historic use of the Subject Site is for residential purposes and there is no change of that use for residential purposes proposed by the Applicant, and therefore no preliminary site investigation is required under to satisfy subcl 7(2) of the SEPP55. 3. further matters pertaining to the presence of contaminated materials on the Subject Site have been considered within the Applicant's statement of environmental effects, and the Parties have included specific conditions of consent to address the removal of these from the Subject Site; 4. further, and noting the points above (at [(a)], [(b)] and [(c)]), the provisions of cl 7(1) of SEPP55 that are required to be satisfied before consent can be granted to the Applicant's development have been addressed, and I am satisfied that the Subject Site will be suitable for its continuing use for residential purposes before the land is used for that purpose; 1. in relation to the provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (the Vegetation SEPP): 1. an authority under the Vegetation SEPP is not required for vegetation clearing that is of a kind authorised under s 60O of the Local Land Services Act 2013 (LLS Act); 2. vegetation clearing authorised by a development consent under Pt 4 of the EP&A Act is a kind authorised under s 60O of the LLS Act. 3. accordingly, no further approval is required under the Vegetation SEPP for any tree removal on the Subject Site as part of the Proposed Development; 1. the Applicant has provided a BASIX certificate no. 1032777M_02, dated 17 June 2021, in satisfaction of the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, 2. in relation to the provisions of CHLEP, the Parties have stated, and I am satisfied, that: 1. in resolving contentions in the appeal, regard has been had to the objectives of the R3 zoning of the Subject Site as provided within cl 2.3(2) of the CHLEP; 2. demolition of the existing structures on the Subject Site is permissible with development consent, and the provisions of cl 2.7 of the CHLEP are satisfied; 3. the Proposed Development is compliant with the height of buildings development standard applicable to the Subject Site, pursuant to the provisions of cl 4.3 of CHLEP; 4. the Proposed Development complies with floor space ratio development standard applicable to the Subject Site, pursuant to the provisions of cl 4.4 of CHLEP; 5. there are no items of environmental heritage on the Subject Site or in the immediate vicinity, and the Subject Site is also not located within or in the immediate vicinity of a heritage conversation area, and so the provisions of cl 5.10 of CHLEP have no application to the Proposed Development; 6. the Applicant's development application, as amended, including the plans for which it now seeks consent, are responsive to matters of flood planning, and the provisions of cl 5.21(2) of the CHLEP have been satisfied. The Applicant's plans for its Proposed Development include an elevated building form in response to flood planning levels on the Subject Site, and the Applicant has also provided, and relies upon: 1. a flood impact assessment, prepared by Australian Consulting Engineers dated August 2019; 2. an amended flood impact assessment dated June 2021, prepared in support of the Applicant's amended plans; 3. an additional information memorandum dated 23 April 2021; and 4. a flood emergency evacuation plan prepared on 4 March 2021. 1. the Applicant's amended documentation has resolved all outstanding flood planning requirements and the provisions of each of subcll 2(a)-(e) of cl 5.21 of CHLEP are met, and the provisions of subcl 5.21(3) have been fulfilled; 2. in relation to the provisions of cl 7.1 of CHLEP concerning acid sulfate soils: 1. the Subject Site Site is identified as containing Class 4 Acid Sulfate Soils in Council's acid sulfate maps and on this basis, pursuant to the provisions of subcl 7.1(3), development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan, prepared in accordance with the Acid Sulfate Soils Manual, has been provided. 2. the Applicant has provided an acid sulfate soil management plan, prepared by Geo-Environmental Engineering and dated 23 August 2021, which has been prepared in accordance with the Acid Sulfate Soils Manual, 3. the Parties' agreed conditions of consent include a condition requiring compliance with the acid sulfate soil management plan; 1. in relation to the provisions of cl 7.2 concerning earthworks, the matters that are required to be addressed under the provisions of cl 7.2(3) have been considered, and: 1. these matters are addressed in the Applicant's Statement of Environmental Effects dated 29 August 2019; and 2. the Applicant's proposed earthworks and excavation on the Subject Site are minimal in scale and will not have a detrimental impact on the soil stability or the amenity of the neighbouring land uses; 1. in relation to the provisions of cl 7.11 concerning essential services, the services that are essential for the Proposed Development will be available when required; 2. in relation to the provisions of cl 7.12, the Proposed Development does exhibit design excellence and: 1. each of the matters raised at subcll 7.12(4)(a)-(e) have been considered in the assessment of the Applicant's development application; and 2. the Parties expert planners had confirmed that they considered that the Proposed Development, as amended, exhibited the required design excellence to satisfy the provisions of cl 7.2 of CHLEP; 1. in relation to the relevant provisions of CHDCP, the Parties have stated, and I am satisfied that: 1. having regard to the provisions of the CHDCP and s 4.15(1)(a)(iii) of the EP&A Act, and noting that the provisions of a development control plan made for the purposes of s 3.42(1) of that Act are not, of themselves, statutory requirements: 1. CHDCP has development controls that provide general development principles at Part A5, Part D3, Part F and Part G applicable to the proposed Development; 2. the Applicant has specifically addressed the requirements of CHDCP within its statement of environmental effects accompanying its development application notably at pages 26 to 35 of that document; 1. the Proposed Development complies with the relevant provisions of CHDCP; or 2. the Proposed Development represents a reasonable alternative solution that achieve the objectives of the controls in CHDCP, and so merits the application of flexibility as provided under the provisions of s 4.15(3A) of the EP&A Act; Conditions 1. The Parties' expert planners had also recommended that certain conditions of consent be imposed requiring that certain refinements be made to the Applicant's landscaping and architectural plans prior to the issue of a construction certificate and these have been adopted within the Parties' final agreed conditions of consent as conditions 5 and 6. 2. Further, all other conditions to be imposed with the grant of consent are agreed by the Parties who advise that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EP&A Act and relevant legal principles as they, inter alia, are responsive to the contentions raised by Council and to the evidence of the experts and residents Conclusions 1. As all contentions in this appeal are resolved, and all jurisdictional requirements are satisfied, the Court is able to make final orders to dispose of the appeal. Orders 1. The Court orders: 1. the Applicant is granted leave to rely upon the following documents in the appeal: 1. an amended plan of management prepared by Think Planners dated August 2021; and 2. an acid sulfate management plan prepared by Geo-Environmental Engineers dated 23 August 2021; 1. the appeal is upheld; 2. Development Application No. 0170/20DA for the demolition of the existing structure and construction of a new boarding house development containing 10 rooms for 18 boarders at 2A Gundagai Place, Coffs harbour, is determined by the grant of consent, subject to the conditions set out in Annexure 'A' to this judgment. ………………………….. M Chilcott Commissioner of the Court (Annexure A) (288599, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2021