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. Planning Framework 10 The site is zoned Residential 2E Tourist under Coffs Harbour Local Environmental Plan 2000 (LEP 2000). Multi Unit Housing is permissible with consent in the zone. The objectives of the zone are: To enable tourist development and other development that is compatible with the surrounding environment. To provide for development that is within the environmental capacity of a high-density residential environment and can be adequately serviced. 11 Park Beach Development Control Plan 2003 (the DCP) provides planning strategies and controls for multiunit housing and tourist development. 12 A key issue between the parties was the application of the DCP and the weight to be given to the "prescriptive" numerical controls and the "performance-based" planning strategies. Part One of the DCP states: Applicants are to comply with the overall Planning Strategy and detailed Planning Controls unless it can be demonstrated that an alternative to all or any of the controls will meet the strategy objectives. 13 It is clear that the DCP requires the consideration of both performance-based and the prescriptive controls. The mechanism to vary the prescriptive controls is a consideration of whether the proposal meets the planning strategy objectives contained in part two of the DCP 14 The overall objectives of the DCP include that: The controls in the DCP seek to: · Encourage tourist and high density development which is: ….. · In accordance with the desired future character of the area. 15 The DCP provides a specific planning strategy for Boultwood Street and other streets in the immediate area. This states the design intent as: Design Intent A building height of maximum four storeys is to respond to the general character of the flat landscape rather than the generous width of the road reserves. The streets should continue to support a variety of tourist and residential uses 16 The design intent for Hogbin Drive in the DCP is: The role of Hogbin Drive as a distributor road is paramount in the efficient functioning of the traffic network of Park Beach and to a lesser extent, the rest of Coffs Harbour. This role would be reinforced by the increased height of buildings along the street. The six-storey height proposed to the eastern edge of Hogbin Road North reflects the intensive tourist precinct. 17 The numerical controls in part three of the DCP that were in dispute between the parties were the height and setback control. 18 The height control for tourist residential states: Buildings are not to exceed four storeys (12 metres) maximum designed to prevent overshadowing the coastal reserve at 3pm on the 22 June (midwinter) or 6pm daylight savings time on 22 December (mid summer). A greater height of six storeys, 18 metres maximum, may be achieved for those allotments immediately adjoining the Hogbin Drive extension, this is shown on the Height Control Diagram. 19 The setback control states: Front Boundary Setbacks - a setback of 6m applies to development. Side and rear Setbacks - buildings are to be setback 6m from side and rear boundaries. An encroachment to 3m for buildings with a height less than six metres(refer to diagram below) is permitted 20 The parties also disagreed on whether the proposal met the relevant objectives for the Park Beach tourist precinct and the desired future character for the area set out in the DCP: Objectives To provide a diverse mix of accommodation, building types and styles; to re-establish the area as a vibrant tourist attraction/ destination; …… to encourage development which ensures no visual intrusion into the beach areas; …… Character The desired future character of the precinct is a vibrant, colourful attractive place for tourist and permanent residents. The focus should be on family oriented activities providing links between these activities and beach/reserve. 21 Clause 51 of North Coast Regional Environmental Plan (REP) requires for buildings over 14m in height, the concurrence of the Director General of DIPNR. Cl 51(3) states that: The Director shall take into consideration the likely regional implications of the development as regards its social, economic and visual effect and the effect which it will have or is likely to have on the amenity of the area. 22 State Environmental Planning Policy No 71 – Coastal Protection (SEPP 71) also applies to the site as it is within the "coastal zone". SEPP 71 specifies matters that must be considered for development within a coastal zone, including the aims of the policy. Aim 2(1)(k) is: To ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area. 23 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (the Residential Code) must be considered. 24 The proposal is integrated development and requires General Terms of Approval from DIPNR under cl 116 of the Water Act 1912. The issues 25 The Statement of Issues before the Court contained 18 issues. Some of these were resolved by additional information and conditions. The key remaining issues can be categorised as: i) Whether the height and front setback of the proposal are compatible with the existing and desired future character of the area. ii) whether the proposal has an acceptable impact on residential amenity, particularly overshadowing and privacy impacts on adjoining properties. The Evidence Mr S O'Conner, the Court Appointed Expert, Mr G Blackburn, town planner for the council, and Mr S Harding, town planner for the applicant, provided expert evidence. Mr J Clark provided planning evidence for DIPNR in relation to its concurrence. 26 The Court heard evidence from the following residents: · Mr and Mrs Rodgers, 11 Boultwood Street · Mr F Grey, 11 Boultwood Street · Mr J Hardaker, 8-10 Prince Street · Ms J Wiebenga, 4/4 Prince Street · Mr T Johnstone, 63 Ocean Parade · Mr P Tobias and Mr R James, 3 Boultwood Street. 27 The main concern of the residents was that the proposal exceeded the four storey height limit and in their opinion was out of character with the area and would set a precedent for further six storey development. Residents were also concerned about impacts from the excavation of the basement and problems with the water table as well as privacy and overshadowing impacts. Mr Hardaker was concerned that the proposal would overshadow the rear of his property and the balconies of the units which would impact on their marketability as tourist accommodation. He was also concerned that the solar panel on the roof would be shaded which heats the pool in winter. Mr Tobias and Mr James were concerned about an increase in overshadowing to their adjoining hotel. Height 28 The key issue in this case is whether the height of the proposal is acceptable. 29 The proposal is six storeys with a maximum height of 18m. The height control in the DCP specifies a maximum height of four storeys (12 metres) designed to prevent overshadowing in the coastal reserve at 3pm on 22 June (midwinter) or 6pm daylight savings time on 22 December (mid summer). Mr Harding stated that the purpose of the control was to prevent overshadowing of the coastal reserve and to achieve the objectives for the Park Beach Area. Mr O'Conner agreed that limiting overshadowing was one purpose of the control but not the only one. Particularly as the area covered by the height control on the map could permit very tall buildings if overshadowing were the only requirement. He referred to the Residential Code which states that "Height is an important control because it has a major impact on the physical and visual amenity of a place. It can also reinforce an area's existing character or relate to an area's desired character". 30 In Mr O'Conner's stated that the existing character was varied although the majority of buildings are two or less storeys. It is necessary to look at the whole DCP to understand the desired future character that it envisages for the area. He stated that over time the character of the area would be four storey buildings with taller buildings along Hogbin Road. He recognised that the setback of the upper two floors of the proposal meant that it would appear as four storeys from some locations and that it would have similar privacy and overshadowing impacts to a four storey building. However, he concluded that the building would be viewed as six storeys from a number of vantage points and that this was inconsistent with the desired future character of the area. He concluded that: As the development proposal does not meet the height requirements specified in the Park Beach DCP, it does not reflect the community and Council's desired future character for the area. The proposal is therefore considered to be inconsistent with the objectives of the Park Beach DCP in that it is not in accordance with the desired future character for the area. 31 Mr Blackburn agreed with Mr O'Conner whereas Mr Harding held the contrary view that the proposal met the objectives in the DCP and the performance criteria of the controls and was therefore consistent with the desired future character. In his opinion the 6 storey development was acceptable as the additional storeys were set back and did not significantly add to the bulk or visual impact of the building, increase overshadowing or impact on privacy. The site is away from the beach and close to Hogbin Road where six storey development is permissible and is therefore the proposal is appropriate within this context and that of existing higher buildings in the area. Placing the accommodation in additional floors has reduced the building footprint and enabled greater areas of deep soil planting and landscaping. He considered that the proposal met the DCP objective by providing tourist and high density development. 32 Mr O'Conner stated that high density did not mean a higher building and that the same number of units with a mixture of sizes could be achieved in a development that complied with the height control. 33 The experts agreed that the additional height of this individual proposal would not be an issue when viewed in the wider context from various vantage points. Although Mr Blackburn considered that the height limit in the DCP aimed to achieve buildings below the tree line. The additional storeys were above the tree line and if other sites were developed in a similar manner, he considered the landscaped quality of the area, where trees dominate over built form, would be lost. 34 Mr Clark did not examine the detailed merits of this individual proposal but considered that while individually the proposal would not have a regional impact, consistent adherence to the height limit specified in the DCP was important. The regional objectives of the REP were implemented through this document that had been through a process of public consultation and it should not be varied in response to an individual application. Setbacks 35 The main area of disagreement between the experts was whether the front setback met the requirements of the DCP. Mr Blackburn interpreted the requirement to be a "build to" line meaning that the development should be set back 6m to achieve a consistent setback along the street "to provide continuity of street facades". Mr Harding and Mr O'Conner interpreted the control as a minimum requirement which was illustrated by the diagram referred to in the control. They considered that the larger setback of 12m was appropriate as the setback of existing buildings was varied with no consistent character and the recent adjoining townhouse development had a larger setback than 6m. The proposal also provided a usable area of north facing open space. Residential amenity 36 The DCP does not include controls that specify the level of acceptable overshadowing resulting from a development. Mr O'Conner referred to the controls in the Residential Tourist Lands Development Control Plan which requires 2 hours of sunshine to living areas and open space between 9am and 3pm on June 22. From an assessment of the shadow diagrams, Mr O'Conner concluded that the proposal would have a significant overshadowing impact on the courtyards of the townhouses at No 11 Boultwood Street, adjoining the site to the west, and on the communal open space of the Torkee Holiday apartments at 8-10 Prince Street, to the south of the site. 37 Mr Harding's opinion was that the overshadowing was from the four storey component of the development and not from the additional two storeys and as such was what would reasonably be expected from development of the site under the DCP. Mr O'Conner did not agree with this conclusion and stated that: It may be the case that the proposed design with the top two levels deleted would have similar overshadowing impacts as the proposed six-storey development however, this does not mean a development with significant overshadowing impacts should be approved on this site. As demonstrated by the shadow movement diagram supplied, the proposed six-storey development would have a significant overshadowing impact on the private courtyard of townhouses to the west of the site and the communal open space at the rear of the development to the south of the site. 38 In relation to privacy, Mr O'Conner considered that the degree of separation and the proposed privacy devices achieved a satisfactory level of privacy to adjoining residents. A view shared by Mr Harding. Findings 39 The key question is whether the proposal, while it does not comply with the numerical height control, achieves the performance based planning strategies in the DCP. I accept Mr O'Conner's opinion that to answer this question the DCP as whole needs to be understood to determine whether the proposal provides tourist and high density development that is in accordance with the desired future character of the area. 40 The character statement in the DCP provides little guidance to the physical form that development should take rather referring to characteristics such as a vibrant, colourful attractive place for tourist and permanent residents. However, the stated design intent for Boultwood Street is for a maximum of four storey development. This contrasts to the stated design intent for Hogbin Drive which anticipates buildings of six storeys to reinforce its role a major access street. 41 The objective of the height control is not stated but I do not accept that its purpose is limited to controlling overshadowing of the beach reserve, but as stated in the Residential Code, referred to by Mr O'Conner, it is an important determinant of the character of an area. 42 The existing character of the area is predominantly buildings two storeys or less set in landscaped settings. When viewed from a distance the landscape dominates the built form with very few built elements visible above the tree canopy providing a landscaped backdrop to the ocean. The four storey height limit would maintain this landscaped character. Unless a building was significantly higher than the tree canopy and other buildings, it would not individually impact on this character. However, development of this area at 6 storeys would result in the landscape being recessive to built form. This is envisaged for Hogbin Drive where higher buildings would mark this major access way. The proposal is in close proximity to the Drive and from most angles would be read in conjunction with buildings likely to be developed along this road but I do not consider that this is sufficient justification for the additional storeys. As it would erode the dominance of what is envisaged for Hogbin Drive and is not what is anticipated for the area between Hogbin Drive and the beach. 43 While the character of the area will change over time to include four storey developments. It is likely that some sites will remain as one to two storeys. The adjoining townhouse development is two storeys and as a recent development is unlikely to be redeveloped in the short term. Adjoining to the west is a one storey development on a single allotment. The DCP permits a maximum height limit of four storeys, which is generally much larger than existing buildings. Even, the achievement of this maximum four storey height limit may need to be adjusted to achieve compatibility with the existing and future context by techniques such as setting back floors to reduce their visual impact 44 The setback of the upper two floors of the proposal has reduced the their visual impact and from some vantage point these levels would not be visible. However, I accept Mr O'Conner's evidence that the proposal will read as a 6 storey building and is not in accordance with the desired future character for the area which clearly envisages a maximum of four storeys for this area. For this reason the application must fail. 45 In relation to the front setback, there is no consistent setback of existing buildings or distinct building line which the development should conform to. I accept that the 6m control is a minimum requirement and that the larger setback of the proposal is acceptable, particularly as it relates to the adjoining townhouse development and provides north facing open space, albeit within the street frontage. Although a lesser setback for part of the frontage as illustrated in the diagram in the setback control would also be consistent with the approach taken by the adjoining townhouse development. 46 The additional storeys of themselves do not result in adverse amenity impacts to the adjoining properties. However, the concerns raised by Mr O'Conner in relation to overshadowing from the lower four storeys need to be addressed by any development of the site. It may be difficult to minimise overshadowing to the courtyards of the townhouses due to their limited size, small amount of existing solar access and easterly orientation, however, an improvement in the solar access to the property to the south could be achieved. Orders 47 For the above reasons the Orders of the Court are: 1. The appeal is dismissed. 2. The development application (1474/04) to demolish the existing motel on the site and construct a multi unit housing development comprising 38 units and basement parking for 86 cars at 5-9 Boultwood Street, Coffs Harbour is refused. 3. The exhibits may be returned. 4. Costs are reserved. __________________ Annelise Tuor Commissioner of the Court 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.