Faseas v Coffs Harbour City Council

The site and its context

1. The site is a rectangular allotment on the northern side of First Avenue and adjoins a beachfront reserve. It has a frontage of 18.1m and area of 505.9sqm. First Avenue is a narrow cul-de-sac and its streetscape consists of single dwelling houses of varied style, size and construction and includes both single and double story dwellings.
2. Panoramic ocean views are available from the site and the public reserve provides direct beachfront access.
3. The site contains an older style asbestos cement two storey dwelling house that has at some time been divided into two occupancies. It is the council's contention that no approval has been granted for any use of the building other than as a single dwelling house.
4. At the time of inspection by the Court the ground floor of the building comprised a one bedroom dwelling with a bedroom, combined living/dining/kitchen area and a bathroom which incorporated laundry facilities including the washing machine within the shower area. The associated bathroom is at a higher level to the remainder of the ground floor and the hallway that services it also provides access to a storeroom and a single car garage.
5. The first floor contains a separate occupancy comprising three bedrooms, kitchen/dining area, living room, a combined bathroom/laundry and a storeroom. Two balconies service this dwelling, one at the front and one to the rear. The upper dwelling is accessed from a stairway adjacent to the driveway and a series of ramps along the western side of the dwelling.
6. Arrawarra Headland is a small coastal village comprising single and two storey dwellings ranging in size from small cottages to newer, larger dwellings. Along the beachfront in First Avenue, the dwellings have similar setbacks to the adjacent public reserve whereas the setbacks to the roadway vary more. There are no fences that separate the dwellings and no fences that define the property boundary and the reserve, that amenity being borrowed by the dwellings.

Background

1. In the circumstances of the case, it is appropriate to understand the history of the existing building. The council has provided evidence of what it says is the original approval for a dwelling house on the land (Exhibit 5). That exhibit includes notes headed Building Record, a Building Application No 47/64 for an asbestos cement dwelling to be erected at Lot 7, Sec 1 First Avenue Arrawarra Headland with a handwritten note "O.K. for approval sub to Side alignment complying with Ord. 70" and dated 28 March 1964 and a plan also noted with the reference 47/64. That plan shows a floor plan for a three-bedroom, single storey dwelling house.
2. The layout of the dwelling is similar to the upper floor plan of the dwelling that is currently erected on the site. The siting of the dwelling differs from that observed in that it is now closer to the eastern boundary.
3. The notes suggest the dwelling was completed on 20 October 1965. The applicant maintains that the dwelling was always constructed as a two storey dwelling house however has not pursued evidence to that effect. The council maintains this is contrary to the building approval and therefore only a single storey detached dwelling has been approved by the council. There is no dispute that the current building has existed on site for some time. The council has no record of any approval of any nature for the construction of a dual occupancy at the site.
4. The applicant has attempted to regularise the building, firstly through the submission of an application for a building certificate on 6 May 2015. That application was refused by the council and a Notice of Intention to Issue an Order requiring cessation of the use of the building for the purpose of a dual occupancy was issued by the council on 6 May 2015.
5. On or about 19 October 2015 the applicant commenced proceedings in this Court against the council's refusal of the building certificate however those proceedings were discontinued on 20 May 2016.
6. The development application subject to these proceedings was lodged on 8 June 2016. The council had, on a number of occasions sought additional information and clarification of the proposal. It has not determined the application.
7. On 29 June 2017 the applicant's planning consultant lodged correspondence, plans and a BASIX certificate for a single dwelling with the council. The letter stated: Please find attached amendments to the proposed dual occupancy development application in response to council's letter dated 15 February 2017. The amended plans show the building modifications required to satisfy BASIX. Please confirm acceptance of these changed in accordance with Clause 55 of the Environmental Planning and Assessment Regulation 2000.
8. This appeal was filed on 13 November 2017.

The proposal

1. The proposed development is for the change of use from single dwelling to dual occupancy. No building works are proposed as part of the application. The use would involve a layout similar to that which is existing however, the plans the subject of the application vary slightly in relation to the bathroom area and show provision for a separate WC.
2. It is common ground that if the Court was to approve the change of use the building would not comply with the provisions of the National Construction Code (BCA). Neither party could inform the Court of the extent of works that would be required to bring the building into compliance however it is agreed that there is a need to fire separate the two occupancies and provide for acoustic separation.
3. Other matters that would not comply relate to the floor to ceiling height of the ground floor dwelling which, when measured during the site view, is less than required under the BCA, the need for the ground floor walls that currently support the upper floor level to achieve the prescribed fire resistance level (FRL) and other less significant works.
4. The application was accompanied by a building report, entitled "Building Report on the existing building" (the building report). Unfortunately, the author of that report was not an expert witness in the proceedings and therefore questions in relation to the recommendations it contained could not be asked, nor could clarification of comments made occur.
5. The task in understanding the works that would be required was made even more difficult by the fact that there was no survey of the site, no fences which assisted in defining the boundary and the plans lodged by the applicant varying from the words within the building report. That report states the building is not set parallel to the boundaries however is generally clear of the side boundaries by 2m or more whereas the plans before the Court show a setback from the eastern boundary of 1.2m.
6. The building report also suggest that the eastern external wall of the building may have to be fire rated and windows removed to achieve the necessary FRL and light and ventilation provided by artificial means with other openings protected from fire by other undefined means with a range of other works required.
7. In relation to structural adequacy, the building report states: "As part of the construction certificate's application, certification from a professional structural engineer will be required, certifying the building is capable of withstanding all projected loads in accordance with BCA Part B".
8. It is the applicant's position that all of the works necessary to be undertaken to the building to bring it into compliance with the BCA can be addressed by a consent condition that required the grant of a Building Information Certificate pursuant to the provisions of Division 6.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
9. The council opposes this path and says the applicant should provide that information to be included in a development application as prescribed in Schedule 1, Part 1 to the Environmental Planning and Assessment Regulation 2000 (Regulation) so that the Court can fully understand the extent of works that are required in order to satisfy itself of the considerations specified in s4.15 of the EPA Act.

The planning controls

1. The site is zoned R2 Low Density Residential pursuant to the provisions of Coffs Harbour Local Environmental Plan 2013 (LEP). Dual Occupancies are permitted in that zone subject to the provisions in Clause 4.1 of that plan which is in the following form: 4.1B Minimum lot size for dual occupancies in Zone R2 (1) The objective of this clause is to achieve planned residential density in Zone R2 Low Density Residential. (2) Development consent may be granted for development on a lot in Zone R2 Low Density Residential for the purpose of a dual occupancy if the area of the lot is at least 800 square metres. (3) If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size.
2. The size of the lot to which the application applies is 505.9m2 and therefore does not comply with this development standard. The applicant relies on the provisions of clause 4.6 of the LEP that provide for exceptions to development standards. This issue is discussed in detail later in this judgment.
3. State Environmental Planning Policy No. 71 - Coastal Protection (SEPP71) applies to the application however no contentions are raised in relation to this policy.
4. Coffs Harbour Development Control Plan 2015 (DCP) also applies to the site and, relevant to the contentions in the case are Clauses 3.1 Density Requirements, 3.5 Private Open Space Requirements and F1.4 On-site Parking Residential Uses.

The issues

1. The contentions in the case include two jurisdictional issues, firstly, whether the appeal was filed in time and secondly, whether the development standard for dual occupancy site area should be varied.
2. In the event that I find these hurdles are met the council contends the application should be refused as the building does not comply with the BCA including that there is no evidence it is structurally adequate; the proposal is not considered to be orderly and economic development and detracts from the character and amenity of the locality; the proposal does not provide adequate amenity for future occupants and inadequate Fire Safety Measures are proposed given the change in classification of the building under the BCA.
3. In addition, the council contends that inadequate information has been provided to allow a proper assessment of the application.

The evidence

1. A site view, including observation of the visual catchment of the site, was held prior to the conciliation conference. There are no objectors to the proposal.
2. Ms S Riley-Lewis (applicant) and Mr J Vescio (respondent) prepared a Joint Expert Report, Exhibit 3, and provided aural evidence to the Court during the hearing.
3. Ms Riley-Lewis prepared the written objection lodged pursuant to clause 4.6(3) of the LEP.

Was the application filed in time?

1. The parties agree, under the EPA Act, that the applicant had six months to appeal to this Court from the date of the deemed refusal of the development application. However, as will be shown, the crux of the dispute between the parties is their disagreement as to what date the development application was taken to have been refused (that is, the date the deemed refusal arose).
2. In order to determine this issue, it is necessary to first briefly set out the chronology of relevant events, the statutory framework and the competing positions of the parties.
3. The prescribed development assessment procedure under the EPA&Act is primarily set out under Part 4 of the EPA&Act and Part 6 of the Regulation. In particular, Division 4.3 of Part 4 of the EPA&Act delineates the procedures for assessing development that needs consent.
4. The conclusion of the development assessment process is the determination of the consent authority to either grant consent (subject to conditions or unconditionally) or refuse to grant consent to a development application (s4.16). However, Division 8.3 of Part 8 of the EPA&Act also provides for circumstances in which consent is taken to have been refused. Relevantly s8.11(1) stipulates that: A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends.
5. A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends.
6. If consent is taken to have been refused under s8.11, the relevant applicant may appeal this deemed refusal to this Court pursuant to s8.7, but only within six months after the date of that deemed refusal (s8.10(1)).
7. In order to ascertain the date on which a development application is deemed to have been refused, it is necessary to refer to the clauses under Division 11 of Part 6 of the Regulation.
8. The relevant period prescribed by the Regulation after which a development application is taken to have been refused (a 'deemed refusal') under s8.11 of the EPA Act depends on what category of development the proposed development is.
9. In order to calculate this assessment period, and therefore ascertain the date on which a development application is deemed to be refused, one has to consider if a stop the clock issue arises under cl107-112 of the Regulation or, as is the case at hand, an amended DA is lodged.
10. The applicant submits that the Court should adopt a purposive approach (to interpreting c54 and 109) consistent with that taken by Pain J in Ipoh Pty Ltd v Sydney City Council (2005) 142 LGERA373; [2005] NSWLEC 514 and Talbot J in Integral Energy v Blue Mountains City Council [1998] NSWLEC 284 (albeit those cases are not entirely apposite).
11. Based on the particular facts as detailed above, which are akin to the Ipoh decision I am satisfied that the appeal is competent.

Clause 4.6

1. The second precondition to the Court in exercising the power to grant consent in this case is Clause 4.6 of the LEP. Clause 4.6 is in the following form: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence……
2. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.
3. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consent departing from the standard; 5. the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.
4. The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
5. It is common ground that only the first objective is relevant to the application.
6. The objectives of the development standard for dual occupancy minimum lot size are at (24).
7. Ms Riley-Lewis' written objection relies on the first, third and fourth tests in Wehbe.
8. In relation to the objectives of the development standard, that is to achieve planned residential density in Zone R2 Low Density Residential, the request has regard to the size of the building, the number of bedrooms, the likely population within a dual occupancy development that contains 1 x one bedroom and 1 x three bedroom dwelling, the fact the building is existing and already contains two dwellings and the bulk, scale, height and site cover of the building. It concludes the broader intent of 'density' controls is to contain the population to within the desired social and environmental capacity fo the site and that the proposed ducal occupancy does not create unreasonable pressure on the social capacity of the site and that it is an appropriate density. It also states that necessary infrastructure is in place and no new structures are required to enable the use.
9. The objection states that the development has operated as a dual occupancy for over 50 years without complaint, presents to the street as a single dwelling and provides a small physical footprint on the land allowing views through the site to the beach. The additional one bedroom ground floor dwelling does not create any additional privacy, noise, parking or traffic implications than the building operating as a single four bedroom dwelling. It concludes that the proposed dual occupancy achieves the objectives of the development standard in providing population density consistent with the low density residential zone. Ms Riley-Lewis advised in aural evidence that her client would be prepared to accept a condition of consent limiting the number of bedrooms in the development to four.
10. In regard to the third test in Wehbe the request states that compliance with the dual occupancy lot size standard would prevent this residential use that is consistent with the population density and built form density of the low density residential zone.
11. With regard to the fourth test the objection states: The value of the standard for this site has been destroyed by Council's approvals in this area. Large single dwellings are built to side boundaries, approved in this street, produce a built form density and population density that exceeds the planned density of the zone. Several large two-storey dwellings in the street are used for holiday letting and provide for multiple tenancies, which also creates traffic and waste generation in excess of that planned for low density residential. Council's enforcement of the numerical standard in this area has proven unsuccessful in achieving the built form density and population density the objective of the standard.
12. The request also addresses the provisions of clause 4.6(3(b) and incorporates a table that is headed Environmental Planning Justification. That table includes an assessment of social and environmental considerations and concludes there are positive impacts arising from the proposal and states: The existing dual occupancy has been used on the site for the past 50 years without incident or complaint. The building presents to the street as a single dwelling and is consistent with eh streetscape. The ongoing dual occupancy use of the existing building will not have any demonstrable impact on the locality and, when compared with what would otherwise be permitted by the applicable development standards on the site, there is arguably a net positive effect in terms of amenity and built form that arises from the retention of the existing building. The proposal also allows for the provision of low income housing.
13. As required under the provisions of clause 4.6(4)(a)(ii) the request also considers whether the development is consistent with the objectives for development in the R2 zone. There is only one objective said to be relevant and that is to provide for the housing needs of the community within a low density residential environment.
14. The conclusions drawn by the author are that the proposed dual occupancy is consistent with the residential density of the zone as it provides a suitable bulk and scale, is with the capacity of the local roads, no overshadowing, privacy or noise impacts arise and it is consistent with the streetscape in terms of setback to street, roof style, roofline on beachfront and setback to the foreshore.

Findings

1. Having regard to the written objection, I am not satisfied that it justifies contravention of the development standards by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case or that there are sufficient environmental planning grounds to justify contravening the development standard. That is because I am not satisfied that the development is either consistent with the objectives of the standard itself or the zone objective.
2. There is nothing in the written request that adequately determines what is required by the objectives of either clause. The zone objectives require provision of housing needs of the community within a low density residential environment and the objectives of the standard require achievement of planned residential density.
3. There is no consideration of the planned density. The development standard itself is the starting point and that requires a lot size of 800sqm for a dual occupancy. That results in one dwelling per 400sqm. The DCP, at part D3.1 reiterates this density control through expressing the control as 1 dwelling per 400m2. Not surprisingly, the DCP provides for more dwellings in the medium and high density zones, those rates being from one dwelling to 200m2 in the case of development less than 8.5m high in the medium density zone and one per 100m2 if greater than 8.5m and one dwelling per 50m2 in the high density zone.
4. In my view the density issue has not been satisfactorily considered with little or no reference to the number of dwellings. The request is reliant on the size of the existing building and the number of bedrooms it contains. I do not consider that this informs either the planned residential density nor would result in a low density residential environment. Whilst I accept that the density that controls the number of dwellings also affects the number of persons or population in an area, there is no way of ensuring that a particular dwelling would contain a certain number of people. For that reason, the suggested limitation on the number of bedrooms, the proposition being flawed in legal application, is no way of demonstrating achievement of either objective.
5. I do not support the view that the council has abandoned its standard. There was no example observed during the site view of any dual occupancy buildings erected on sites that have an area less than 800 square metres. Similarly, there was no evidence of dwellings built on lots that had an area less than 400 square metres. Whilst there were new, large dwellings in the visual catchment of the site those dwelling meet the planned density of one dwelling per 400 square metres. Further, there is no evidence that any of these buildings do not comply with relevant development standards or DCP requirements.
6. I have considered this issue in earlier decisions and arrive at a similar conclusion to that which I drew in Costello v Bathurst Regional Council [2017] NSW LEC 1195 where, at [50] I state: 50. In order to demonstrate that the planned density is achieved, some regard must be had to what that density is and what density is delivered by the development. Site coverage alone cannot ensure the planned density is delivered. That is because all site coverage controls is the area of land covered by a building. It does not control the occupancy of that building and therefore its population nor does it control the bulk or scale of the building in that it could be a single storey or multi-level building.
7. Similarly, the floor space ratio or bulk and scale of the building does not ensure a particular density will be achieved.
8. Clause 4.6(3)(b) also requires consideration of whether the written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. I am not so satisfied because the existence of an existing building, the lawfulness of which has not been demonstrated, and lack of adverse impact cannot be a reason to allow variation of the development standard.
9. For the reasons outlined above, I am not satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by clause 4.6(3).
10. I am also not satisfied that approval of the proposed development would be in the public interest as, based on my conclusions outlined above it is not consistent with the objectives of the development standard or the R2 zone.
11. Finally, determination of the provisions of clause 4.6 requires consideration of whether contravention of the development standard raises any matter of significance for State or regional environmental planning and of other matters required to be taken into consideration by the Secretary before granting concurrence. I have no evidence of any such issues.
12. For these reasons, I am not satisfied that the written request justifies contravention of the development standard.
13. In relation into the merits of the application, I am not satisfied that the plans before the Court are capable of consent. Clause 4.15 lists those matters for consideration and whilst the applicant advises no building works are proposed, it is acknowledged that the path suggested, that is through the grant of a Building Information Certificate pursuant to the provisions of Part 6, Division 6.7 of the EPA Act, would lead in some alterations being made to the building.
14. There is no certainty as to the extent of those work and for this reason I do not consider that the path is one that should be taken in these circumstances. Whilst it may be an appropriate path in some circumstances, this is not the case in relation to this proposal, particularly when no understanding of the building's structural adequacy for the intended use is known. I note the comments of the then Moore AJ in Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197 where, at [209] he states: Whilst the process adopted in each Council resolution may be unconventional, and might be regarded by some as not being best practice, nonetheless the protective position that the use of the building as a "function centre: could not lawfully commence until an occupation certificate was obtained and such occupation certificate would not be available until after a building certificate had been obtained achieved the same outcome to practical effect as the process adopted in Ireland.
15. That path may be appropriate in some circumstances and, in that particular case the extent of works were described as minor. I only have the evidence of Mr Vescio, a qualified building surveyor who stated he was surprised the applicant contemplated the application due to the major works that would be required including structural works.
16. In regard to DCP compliance, consideration of impacts should be made as part of the assessment of the development application, not left for another day.
17. In the circumstances of the case I find the application must fail and, that even if I am wrong on the two jurisdictional questions, consent should not be granted for the change of use of the building on the terms proposed by the applicant.
18. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No DA 1035/16DA for the change of use from a single dwelling to dual occupancy at 4 First Avenue, Arrawarra Headland, is refused consent. 3. The exhibits, other than exhibits 1 and B, are returned. ………………………. Acting Commissioner Morris

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: 23 May 2018