Land and Environment Court of New South Wales CITATION : Watergate Developments Pty Limited v Coffs Harbour City Council [2007] NSWLEC 558 APPLICANT Watergate Developments Pty Limited PARTIES : RESPONDENT Coffs Harbour City Council FILE NUMBER(S) : 10980 of 2006 CORAM: Moore C KEY ISSUES: Development Application - Subdivision :- Allotment size Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Local Government Act 1993, s 372 Ulmarra Local Environmental Plan 1992 Weal v Bathurst City Council & Anor [2000] 111 LGERA 181, NSWCA 88; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; CASES CITED: Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472; Zhang v Canterbury City Council (2001) 115 LGERA 373; Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 DATES OF HEARING: 27 August 2007 EX TEMPORE JUDGMENT DATE : 27 August 2007 APPLICANT Mr C Stevenson, solicitor A Ace Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr W Langler, solicitor MBT Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 27 August 2007 06/10980 Watergate Developments Pty Limited v Coffs Harbour City Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Coffs Harbour City Council (the Council), on 13 October 2005, of Development Application 381/06 for a five lot subdivision and the erection of five dwelling houses at 37 Coral Street, Corindi Beach (the site). The application is permissible in the zone. 2 The site is on the corner of Coral Street and Pacific Street. The site is generally rectangular in shape with the long axis of the rectangle running east–west. 3 Located immediately to the north is a single dwelling on an allotment that appears generally to be of the same length as the site – although marginally longer to the east as a consequence of the excision from the site, at its eastern end, of land containing a demountable Telstra exchange building. The allotment to the north is generally of the same width as the site. 4 To the east of the site, immediately past the Telstra building, is a very large allotment owned by the Coffs Harbour and District Local Aboriginal Land Council (the Land Council). This allotment is significantly vegetated and, in the words of the applicant's former consultant, comprises vegetation closely resembling Dry Sclerophyll forest which is Vegetation Group 1 for the purposes of Planning for Bushfire Protection. 5 The applicant's former consultant also noted that, in its view, that land to the east rated as bushfire attack category low-medium. 6 I have in evidence an extract from the Council's GIS bushfire mapping for the relevant area. This clearly notes that neither the site nor the Telstra exchange building is fire hazard mapped. A small part of the adjacent allotment of the north, in its north-eastern corner is so mapped and a small portion, in the south-western corner of the Land Council's land is not so mapped. The major portion of the Land Council's land, towards the site, is mapped as bushfire prone with an extreme fire hazard area along its eastern and northern boundaries. 7 Essentially, the Council advocates three reasons in support of continuing refusal of the application. These are the bushfire risk; incompatibility of the proposed bulk and scale of the development in its context; and non-compliance the minimum lot size in Development Control Plan 8 (DCP 8) which is the development control plan for the Corindi locality adopted by the former Pristine Waters Council. 8 The application as had of a somewhat convoluted history as a consequence, in part, of the fact that the area where the site is located has been in three different local government areas since the application was first lodged in August 2003. 9 On the 18 February 2004, the councillors of the Pristine Waters Council resolved: Support be given to an amended development application for a two-stage development with construction on lots 4 and 5. Consent for lots 1 to 3 to be built on will only be granted once satisfactory sewerage arrangements are available and acceptable to Council. 10 The precise meaning of that resolution and the effect to be given to it is subject to separate Class 4 proceedings and does not detain me in these proceedings. 11 The matter that is put, by Mr Stevenson, solicitor for the applicant, as relevant in the proceedings is that the resolution of support has not been validly rescinded. Hence, he submits that I should give some weight to what he says should be taken to be ongoing institutional support necessarily to be inferred as a consequence of the non-recision of such a resolution, as such recision is required to be carried out consistent with the provisions of s 372 of Local Government Act 1993 and not by mere implication. 12 I have been given evidence by Mr Blackburn, a town planner employed by the Council, that appropriate and relevant delegations are in place that enabled refusal to be given validly pursuant to the notice of determination of 13 October 2005. 13 The onus is on the applicant in such proceedings to demonstrate that the delegations have not been validly given, if the delegations are challenged. 14 I propose to accept, for the purposes of the present application, that two propositions apply. The first is that there is to be inferred a general ongoing representative support for the proposal and the second is that the notice of determination refusing the application was validly given under delegated authority. 15 Taking those two propositions together, as assumptions, puts the applicant's case at its highest. If the application fails at its highest, there is no need for me to explore whether or not I should set aside any consideration being given to the resolution of the Pristine Waters Council of 18 February 2004. 16 The applicant tenders a letter from the Land Council in response to the question of bushfire risk and how I should consider the terms of cl 29 of the Ulmarra Local Environmental Plan 1992 (the Ulmarra LEP) (being the applicable Local Environmental Plan). 17 This letter indicates that the Land Council is prepared to permit the applicant to create and maintain a minimum 30 m buffer for an Asset Protection Zone (APZ) in the Land Council's land. The Land Council puts the proviso that doing so could not cause constraints on any future development plans the Land Council may hold for this property. 18 I observe that, for the creation of a 30 m buffer zone, that would only require approximately half of that APZ to be on the Land Council's land rather than the totality of it being on that land. 19 In response to that letter, Mr Langler, the solicitor for the Council, has tendered a copy of the Council's Tree Preservation Order (the TPO) (which incorporates the Ulmarra Council's resolution of 18 January 1995 adopting that council's tree preservation order). The TPO has the effect of requiring development consent for the removal of any trees located on the Land Council's land for the purposes of creating the APZ. 20 There are two difficulties that stand in the way of the applicant with respect to using the Land Council's land for the purposes sought. 21 Whilst these difficulties might not be insurmountable, on some future application, they are difficulties which are incapable of resolution in these proceedings. They arise out of two decisions of the Court of Appeal. The first, Weal v Bathurst City Council & Anor [2000] 111 LGERA 181, NSWCA 88 makes it inappropriate for me to delegate to some external body the granting of consent on a fundamental pre-condition necessary for an application. 22 In this case, there would be a need for development consent to be granted by the Council, pursuant to the TPO. No such application has been made. There is no way that, in these proceedings, I can grant a development consent subject to a condition requiring some subsequent application to be lodged by a body which is not a party to these proceedings – which would be an unspecified application and one the granting of which would be at the discretion of the Council. 23 That is not to say, on some future basis, that the Land Council could not lodge an application to the Council, simultaneously with some future application on the site. However, that is not case in these circumstances. 24 The second is that the outcome of such a development application is, in itself, sufficiently uncertain so as to offend against the decision of the Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 – thus rendering it inappropriate for me to accept the unquantified and general proposition contained in the Land Council's letter. 25 I make it clear that, in this regard, my finding is not that the applicant is incapable of satisfying the cl 29 bushfire requirements of the Ulmarra LEP – merely that I am unable, for the purposes of these proceedings, to be satisfied that the requirements of cl 29 of the Ulmarra LEP have, in fact, been satisfied. 26 I turn to the question of incompatibility and bulk and scale issues in the streetscape. In all respects, in my view, these are simply a reiteration, in a differing form, of the objection based on non-compliance with the minimum lot size contained in cl 5.8.1 of DCP 8. 27 If the proposal is not prevented by application of the lot size requirements of DCP 8, the questions involved in the design of the proposed dwellings and their bulk and scale necessarily go away. 28 This is because, as was evident from the inspection undertaken of the locality, there is a sufficient incidence of two-storey dwellings in the immediate vicinity for the proposal's houses not to be so uncharacteristic as to be unacceptable – if their density is acceptable. 29 I now turn what seems to me to be the fundamental issue in the proceedings. That is whether or not failure of the proposal to meet the minimum lot size provisions of cl 5.81 of DCP 8 is fatal to the proposal. 30 DCP 8 was adopted on 17 Sep 2003 and was effective three days later - on 20 September 2003. 31 The application, which was lodged by the then advisers to the current applicant, was lodged on 15 August 2003. 32 There is no suggestion raised by the applicant that DCP 8 was adopted in a fashion inconsistent with that discussed by McClellan CJ in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472. 33 Consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, DCP 8 is to act as the focal or starting point for my consideration of this application. However, it does not act as an inevitably fatal impediment to the application. 34 If I am otherwise satisfied as a result of an assessment under s 79C of the Act that, notwithstanding the provisions of DCP 8, an non-compliant application ought be approved, nothing stands in the way of me giving such an approval. 35 Mr Stevenson has taken me, in his written submissions, to a quotation from a decision of Lloyd J in Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 at para 16 as to the extent to which I should give weight to a development control plan which was not in effect at the time that the application was lodged despite the fact that it is now in effect at the time I come to determine the application. 36 I accept, consistent with Lloyd J's decision, that I am not simply blindly to adhere to and strictly enforce the provisions of cl 5.8.1 of DCP 8. 37 However, DCP 8's minimum lot size (created by cl 5.8.1) of 450 sq m is also consistent with the pre-existing subdivision pattern in the Corindi Beach locality. 38 I also have evidence, in at least five instances in the Corindi Beach locality, since DCP 8 came into effect, where subdivisions have been approved applying the 450 sq m allotment size consistently. 39 The smallest allotment that has been created, as a consequence of any of those subdivision approvals, is 461.7 sq m – being an allotment created in December 2005. 40 In the present instance, the allotment sizes which are proposed to be created cannot be regarded as a minor departures from the minimum allotment size in cl 5.8.1 of DCP 8 or from the general pattern in the locality. 41 The largest allotment is proposed to have an area of 311.7 sq m; one is to have an area of 277.7 sq m; and the remaining three are to have areas of 277.3 sq m. 42 I estimate that the largest lot is some 66% of the minimum allotment size whilst the other proposed allotments are in the vicinity of 60% of the minimum allotment size. None of these departures could be regarded as de minimus. 43 As noted above, there has been a consistent approach of the Council in applying the lot size standard of DCP 8 to other subdivisions in the Corindi Beach locality. 44 Although I am not bound to adhere blindly to those standards, I am satisfied that the proposed departures from the DCP and, more broadly, from the existing general subdivision pattern in the vicinity, are sufficiently great that they are unacceptable. The consequence of approval of that unacceptability would lead inevitably to the second of the issues put by the Council and that is an overdevelopment of the site inconsistent with the existing development in the vicinity. 45 Mr Stevenson also put the proposition to me that I should have regard to the fact that the present building is an unpleasant intrusion to the local streetscape and that that which is proposed will be an improvement. 46 That may well be the case. It would however be an unacceptable improvement – that is the number of proposed dwellings and their lot sizes is antithetic to both the subdivision standard and the existing subdivision and development pattern. It would still result in an unacceptable over-development of the site. 47 I have also considered whether or not I should determine what might be an appropriate development. In doing so, I have also considered whether or not I could give approval to some lesser number of allotments. 48 The Council's position, as I apprehend it, is that a three lot subdivision would be possible to comply with DCP 8's minimum lot sizes. 49 However, I have determined that is not appropriate to me to decide whether either a three or four lot subdivision should be approved. 50 Either option would require a further subdivision design which, in itself, would necessitate consideration of the setbacks from the eastern end of the site and whether such a revised subdivision of either three or four lots would resolve the bushfire issues. 51 The necessary consequences of the foregoing, therefore, are that: 1. The appeal is dismissed; and 2. Development Application 381/06 for a five lot subdivision and the erection of five dwelling houses at 37 Coral Street, Corindi Beach is determined by the refusal of development consent. Tim Moore 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.