Prestige Building Services Pty Ltd v Coffs Harbour City Council [2005] NSWLEC 435

Land and Environment Court of New South Wales

CITATION : Prestige Building Services Pty Ltd v Coffs Harbour City Council [2005] NSWLEC 435

APPLICANT Prestige Building Services Pty Ltd PARTIES : RESPONDENT Coffs Harbour City Council

FILE NUMBER(S) : 10746 of 2004

CORAM: Tuor C.

Development Application :- Multi unit development height KEY ISSUES: setback impact on residential amenity overshadowing and privacy

Coffs Harbour Local Environmental Plan 2000 North Coast Regional Environmental Plan LEGISLATION CITED: State Environmental Planning Policy No 71 - Coastal Protection State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Water Act 1912

DATES OF HEARING: 02 & 03/05/2005

DATE OF JUDGMENT: 08/10/2005

APPLICANT Mr P McEwen, SC SOLICITOR Colin Biggers & Paisley LEGAL REPRESENTATIVES:

RESPONDENT Mr J Mulder, solicitor SOLICITORS MBT Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

10 August 2005

10746 of 2004 Prestige Building Services Pty Ltd v Coffs Harbour City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Coffs Harbour City Council (the council) of a development application (1474 /04) to demolish the existing motel on the site and construct a multi unit housing development with two basement car parking levels at 5-9 Boultwood Street, Coffs Harbour (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is located on the southern side of Boultwood Street and consists of three lots of similar size (lots 11, 12 and 13, Section C, DP 17053). The combined lots have a total area of 3080sqm, a frontage to Boultwood Street and a rear lane of 47.1m and a depth of 65.4m. The site is predominantly flat and is developed with a two-storey motel, a pool and landscaped area. 4 Adjoining development to the west, on the corner of Hogbin Drive, is a recent two-storey townhouse development (11 Boultwood Street). To the east is a single storey motel development (3 Boultwood Street), which runs north south along a single allotment. Further to the east is a three-storey motel above a podium on a wider allotment. 5 The site is within the Coffs Harbour suburb known as Park Beach, which is to the north east of the city centre. Surrounding development in the locality consists of a mix of residential and tourist accommodation. Development in Boultwood Street is predominantly one to two storeys on single allotments. This development is a mixture of styles with no consistent character or setback to Boultwood Street and little architectural merit. The buildings are generally in landscaped settings, although often the landscaping consists of grass, swimming pools and driveways with only scattered trees. The history of the application 6 The application was lodged on 22 March 2004 and was notified to adjoining and nearby residents. Council received 9 objections and refused the application on 18 June 2004. The Applicant lodged an appeal against this refusal. An amended application was renotified and 30 objections were received, including 25 form letters. Further information was provided and the amended application was again renotified and four objections were received. These plans are the subject of the appeal. 7 The parties agree that the refusal of the original application by council was technically flawed and that the application remains undetermined. During the proceedings I granted leave to the Applicant to amend the appeal to be against a deemed refusal of the application. The council did not oppose this. 8 The original plans were referred to the Department of Infrastructure, Planning and Natural Resources (DIPNR) for concurrence in accordance with cl 51 of the North Coast Regional Environmental Plan (REP) and for General Terms of Approval under s116 of the Water Act 1912. By letter dated 18 May 2004 DIPNR refused its concurrence. This was restated in a letter dated 21 April 2005 in response to the amended plans. General Terms of Approval have not been provided. The proposal 9 The proposal is to demolish the existing two-storey motel and construct six-storey multi unit residential development with 38 units and two basement parking levels for 86 cars. The height of the proposal is approximately 18m. The lower four levels of the building are set back from the north and Boultwood Street about 12 metres. The upper two floors are further set back. The basement car park is set back about 6m from the boundaries of the site. The side setbacks to east and west are 6m to he building and 3m to the entry and exit driveways to the basement. The setback of the building to the rear boundary is 8.4m. There is a 6m wide laneway along this boundary.