Knight v Coffs Harbour City Council

The site and its locality

1. A site view was conducted at the commencement of the hearing. The site is on the corner of Victoria and Solitary Streets, with a frontage of 40m to Victoria Street and secondary frontage of 20m to Solitary Street. The site is legally described as Lot 2 Section 2 in Deposited Plan 758258. It is generally rectangular in shape and has an area of 1062m2. The site slopes away from the south eastern corner with a fall of about 5m to the north western corner. A part one storey part two storey building is located on the site, and is divided into four flats.
2. Adjoining the site to the west is a single storey weatherboard clad federation style cottage. Adjoining the site to the north is a recently refurbished flat roofed two storey dwelling of 1950s construction.
3. The immediate surrounding locality comprises of a mix of building typology with predominantly single dwellings with a one and two-storey presentation to the street interspersed with dual occupancies and residential flat buildings. The built form and architectural style of the buildings is varied.

The planning framework

1. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The site is zoned R3 Medium Density Residential under the Coffs Harbour Local Environmental Plan 2013 ("CHLEP 2013"). It is in the centre of an area with the same zoning. Clause 2.3(2) of the CHLEP 2013 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives for the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that medium density residential environments are of a high visual quality in their presentation to public streets and spaces.
3. Residential accommodation is an innominate permissible use within the R3 zone under the CHLEP 2013, and residential flat buildings fall within the definition of "residential accommodation".
4. Clause 4.3 of the CHLEP 2013 establishes a 5.4m building height development standard in accordance with the Height of Buildings Map. The site is part of a small area at the top of the ridge that is both zoned R3 and has a height development standard of 5.4m. The Council has indicated that this relatively low height development standard arises from the need to preserve the Obstacle Limitation Surface ("OLS") which is a mapped height with height limits for the operation of the Coffs Harbour Regional Airport.
5. The proposed development breaches the building height development standard, with a height ranging from 5.8m to 8.8m at its highest point. As such, consent cannot be granted except in accordance with cl 4.6(2) of the CHLEP 2013. Clause 4.6 provides, at subcll (3) and (4): (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.
6. Clause 7.9 of the CHLEP 2013 applies, and provides as follows: 7.9 Airspace operations (1) The objectives of this clause are as follows: (a) to provide for the effective and ongoing operation of the Coffs Harbour Regional Airport by ensuring that such operation is not compromised by proposed development that penetrates the Limitation or Operations Surface for that airport, (b) to protect the community from undue risk from that operation. (2) If a development application is received and the consent authority is satisfied that the proposed development will penetrate the Limitation or Operations Surface, the consent authority must not grant development consent unless it has consulted with the relevant Commonwealth body about the application. (3) The consent authority may grant development consent for the development if the relevant Commonwealth body advises that: (a) the development will penetrate the Limitation or Operations Surface but it has no objection to its construction, or (b) the development will not penetrate the Limitation or Operations Surface. (4) The consent authority must not grant development consent for the development if the relevant Commonwealth body advises that the development will penetrate the Limitation or Operations Surface and should not be constructed.
7. Civil Aviation Safety Authority ("CASA") and Airservices Australia ("Airservices") were consulted as required by cl 7.9. Airservices advised that the development will not affect any sector or circling altitudes, nor any instrument approach or departure procedures at Coffs Harbour Airport. Specifically, a CASA representative stated by email dated 8 March 2017 that "It is CASA's assessment that the proposal is shielded by the obstacle lighting on the crest of the hill, street lighting on Victoria St, and existing developments".
8. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ("SEPP 65") also applies, and provides at cl 28(2) that: "(2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide."
9. Clause 30 of SEPP 65 provides: "(1) If an application for the modification of a development consent or a development application for the carrying out of development to which this Policy applies satisfies the following design criteria, the consent authority must not refuse the application because of those matters: (a) if the car parking for the building will be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment type specified in Part 4D of the Apartment Design Guide, (c) if the ceiling heights for the building will be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. Note. The Building Code of Australia specifies minimum ceiling heights for residential flat buildings. (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria."
10. The Apartment Design Guide ("ADG") is therefore relevant to the application. Objective 3F-1 in Part 3F 'Visual Privacy' of the ADG provides the following design criteria: "1. Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: Building Height Habitable rooms and balconies Non-habitable rooms Up to 12m (4 storeys) 6m 3m Up to 25m (5-8 storeys) 9m 4.5m Over 25m (9+ storeys) 12m 6m

1. Objective 4A-1 of the ADG is to optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space. The applicable and relevant design criteria is that "living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 3 hours direct sunlight between 9 am and 3 pm at mid winter".
2. Coffs Harbour Development Control Plan 2015 ("CHDCP 2015") also applies. D 3.1 provides density controls, and establishes a control for development in the R3 Medium Density Residential zone of 1 dwelling per 200m2 for buildings less than or equal to 8.5m in height, and 1 dwelling per 100m2 for buildings greater than 8.5m in height. The objectives of that control are to "ensure that the density of residential development is appropriate to the scale and character of each location" and to "ensure that a variety and choice of housing is available within the Coffs Harbour Local Government Area."
3. D 3.3 sets out the side and rear setback requirements for land zoned R3 Medium Density Residential, which requires 3m for buildings less than or equal to 8.5m in height, and 6 metres for buildings greater than 8.5m in height.
4. D 3.4(3) makes it clear that private open space (including swimming pools) is not to be located within the front setback area adjoining a primary road "unless satisfactory fencing and screening is provided for privacy and safety for occupant's and to minimise adverse impacts on the streetscape."

The proposed development

1. The proposed residential flat building has a basement car park and two residential floors, incorporating an apartment mix of 4 two-bedroom apartments, 2 three-bedroom apartments and 1 four-bedroom apartment. Four apartments are to be located on the ground floor, and 3 on the first floor. A swimming pool is proposed within the front setback area, adjacent to the northern boundary. Each of the apartments is orientated north to south, with private open space orientated to the north. The reduced building bulk at the upper level (resulting from the amended plans) provides a stepped height transition from the highest point of the proposed development to the adjoining property located to the west at 115 Victoria Street. The proposed development presents as two levels to the streetscape.

Issues raised on the original application

1. In a Statement of Facts and Contentions filed on 18 April 2018, the Council raised a number of grounds upon which it contended, at that time, the application should be refused. They can be summarised as follows:

• The proposed development is an overdevelopment of the site as it exceeds the maximum density set out in the CHDCP, exceeds the height limit and provides insufficient setbacks and separation.
• The proposed development does not comply with the height development standard and its objectives, and the written request to vary the standard does not adequately justify a departure from the standard.
• The proposed development has adverse amenity impacts on future occupants as it does not demonstrate that the units have sufficient solar access and there is no communal open space.
• The proposed development results in adverse visual amenity, acoustic amenity and privacy impacts on neighbouring development.
• There is insufficient landscaping provided.

1. As a result of the amended plans referred to above and the expert evidence outlined below, the Council now agrees that these matters are resolved.

Evidence of the objectors

1. The proposal was initially notified for a period of 14 days in accordance with the requirements of the CHDCP 2015. In total 16 submissions were received, raising issues concerning the breach of the height standard, bulk and scale, setbacks, overlooking and privacy concerns, non-compliance with the ADG, overdevelopment, lack of bush fire protection, lack of communal open space and car parking and traffic.
2. Following a conciliation conference conducted in accordance with s 34 of the Land and Environment Court Act 1979, the objectors were notified of 'without prejudice' amended plans by letter dated 2 August 2018. The letter described the changes and invited responses by 9 August 2018. A further letter was sent on 11 October 2018 advising the objectors of the hearing date and the opportunity to attend and speak on site. Finally, a day prior to the hearing a number of the objectors were notified by email of proposed conditions of consent (albeit not the final version, which includes two additional conditions of consent discussed below).
3. As a result of that notification process, Mr Lawer, town planner, attended the site inspection at the commencement of the hearing and made submissions on behalf of the neighbouring residents at 3 Solitary Street. Those submissions were made in the context of the amended plans and the proposed conditions of development consent. The submissions raised a number of concerns, which can be summarised as follows:

• The size of the terrace to Apartment 5 is excessive, and greatly exceeds the ADG and the Council's development controls, which could result in its use by a large number of people. As a result, the terrace should be deleted, or planter boxes placed around the perimeter to prevent overlooking into the private open space of 3 Solitary Street.
• The balustrades that are required for the balconies should be solid and inverted on an angle, rather than having opaque glazing. This would better protect the visual privacy of 3 Solitary Street.
• There is a potential for overlooking from someone standing on the pool coping into the bedroom window at 3 Solitary Street.

The breach of the height development standard

1. Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

• The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)),
• The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)),
• The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), and
• The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

1. In considering the third and fourth points above, in Initial Action, Preston CJ made it clear that the Court need not be directly satisfied that compliance is unreasonable or unnecessary and sufficient environmental planning grounds exist, but rather that it "only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed" those matters (at [25]).
2. Clause 4.6(4)(a)(ii) presumes that if the proposed development is consistent with the objectives of the zone and of the standard, then it is in the public interest. These matters need not be established by the written request. From cl 4.3 of the CHLEP 2013, the objectives of the height development standard are: (a) to ensure that building height relates to the land's capability to provide and maintain an appropriate urban character and level of amenity, (b) to ensure that taller development is located in more structured urbanised areas that are serviced by urban support facilities, (c) to ensure that the height of future buildings has regard to heritage sites and their settings and their visual interconnections, (d) to enable a transition in building heights between urban areas having different characteristics, (e) to limit the impact of the height of a building on the existing natural and built environment, (f) to encourage walking and decreased dependency on motor vehicles by promoting greater population density in urban areas.

The request to vary the height development standard

1. Accompanying the amended plans the subject of the proposed development is an amended written request that is lodged pursuant to cl 4.6 of the CHLEP 2013 and seeks to justify the contravention of the height development standard. The request is well structured, thorough and specific to the proposed development. It advances a number of reasons as to why compliance with the height development standard on the site is unreasonable and unnecessary, which can be summarised as follows:

• The purpose of the relatively low height development standard is to maintain the OLS. Compliance with the development standard is considered unnecessary in the subject case as the building height will not penetrate the OLS nor impact airport safety. This has been confirmed by CASA.
• The objectives of the height development standard in cl 4.3 are achieved notwithstanding the non-compliance with the standard. Compliance with the standard is therefore not necessary to meet those objectives.

1. The written request also provides a number of environmental planning grounds relied upon to justify the contravention of the height development standard. One of those grounds is set out under a heading that seeks to specifically address environmental planning grounds, and others are interspersed within the request. The key grounds that I have identified as being relied upon in the request are:

• The contravention of the standard is justified on the basis that the applicable height development standard of 5.4m is "to maintain airport safety in accordance with the OLS. If not for the OLS, the site and surrounding land would have a Height of Building limitation in line with other R3 zoned land in the immediate surrounding area" (Ex C p 4-5).
• "In terms of height profile, an appropriate medium density urban character is expressed in the proposed two storey plus basement urban form. The proposed building height complements the predominantly two level height profile of adjoining residential buildings" (Ex C p 6).
• "The neighbourhood has been identified for higher density development. Maintaining the development standard will hinder "good design principles" and compromise the residential outcome within the site" (Ex C p 8).

1. The request also outlines how the proposed development is consistent with the objectives of the standard and of the zone. The request considers there to be consistency with the objectives of the height development standard for reasons that can be summarised as follows:

• Consistent with objective (a), the height relates to the land's capability, complements the predominantly two level height profile of adjoining residential buildings, and maintains the amenity of the surrounding property.
• Consistent with objective (b) to ensure that taller development is located in areas serviced by facilities, the area has been identified for increased density due to its high residential amenity and access to urban services and recreation areas.
• With respect to objective (c), the site is 150m from the nearest heritage item (and so, by extension, need not have regard to heritage sites).
• Consistent with objective (d), the area is in transition and has mixed urban forms and densities, and the proposed development provides a transition in building heights.
• Consistent with objective (e) to limit the impact of the height, the height increase between the proposed building and the current building is minor, and there is minimal overshadowing and overlooking.
• Consistent with objective (f), the proposed development will increase the site density in an area with walkable connections to urban services and the beach.

1. The request also expresses that there is consistency with the zone objectives as the proposed development will provide for the housing needs of the community within a medium density residential environment with an exceptionally high level of visual quality.

Expert evidence

1. Mr Jim Booth and Mr Joseph Vescio gave expert evidence on the town planning issues in the proceedings. They conferred and prepared a joint report, and gave evidence in Court.
2. Mr Booth and Mr Vescio agree, inter alia, that:

• The proposed development is consistent with the objectives of the zone and the objectives of the height development standard.
• Compliance with the height development standard is unreasonable and unnecessary given the underlying purpose of the height limit and the approval granted by CASA.
• The proposed development has a density of 1 dwelling for 152m2 of site area, which is in between the two controls expressed in D 3.1 of the CHDCP 2015 and is considered to be appropriate for the site and satisfies the objectives of the controls.
• The proposal provides setbacks in line with CHDCP 2015 being 3m and 6m from the side boundaries.
• The proposal provides a suitable design response for the sloping nature of the project site when viewed from Victoria Street and in respect to the amenity of neighbouring properties. The removal of one apartment from the highest portion of the proposal at its western end provides a stepped height transition to the adjoining property located to the west at 115 Victoria Street.
• The 2 level presentation to the streetscape is consistent with the built typology of surrounding buildings within the immediate area.
• Solar access, views and privacy are all maintained to adjoining properties.
• Overlooking and privacy of the adjoining property at 3 Solitary Street is suitably dealt with by setbacks, treatment of balustrades, and landscaping/fencing at ground level. The noise associated with residential development of an in-fill urban site is within reasonable expectations of a suburban environment.
• The provision of the pool adjacent to the boundary with 3 Solitary Street restricts the size of the useable terrace and provides a buffer for the neighbours, thereby providing protection of the visual privacy of the neighbours.

1. Mr Booth and Mr Vescio agree that it is likely that the units achieve adequate solar access due to their orientation to the north. However, in order to ensure that the living areas of the development achieve adequate solar access, they agree that there should be a condition of deferred development consent imposed on the development as follows: "The consent is not to operate until the applicant has satisfied Council as to the following matters before the consent can operate: (a) Amended plans accompanied by view from the sun diagrams and sections are to be submitted for the approval of Council which demonstrate that at least 5 units receive 3 hours of direct sunlight (between 9am and 3pm of the winter solstice) to the living rooms and private open space areas. Direct sunlight is deemed to be a minimum of 1m2 measured at 1m above floor level, for a minimum duration of 15 minutes."
2. Mr Booth and Mr Vescio also agree that, in order to protect the privacy of the adjoining properties, to provide additional landscaping and to reduce the impact of the proposal, the following condition should be imposed on the grant of consent: "Amendment of Plans 5. The approved plans must be amended in accordance with the following requirements: (a) All trafficable balconies / terraces at less than 6m from the northern boundary shall be provided with an obscure treated balustrade to prevent overlooking into the adjoining property. Such balustrade is to be designed as solid balustrade to a height of 700mm and obscure glazing up to a height of 1100mm. (b) An internal balustrade is to be provided to restrict the accessible part of the balcony off Unit 5 to a maximum depth of 1800mm. (c) The terraces and balcony off Unit 5 shall remain disconnected at all times, with the residue roof terrace is to be non-trafficable being dedicated as common property and no exclusive use rights are to be given for the use of this area. (d) The landscape plans are to be amended as follows: • so as to provide for landscaping in the North West corner with a tree achieving a mature height of at least 6m; • deletion of the paved terrace to the east of the pool and replacement with soft landscaping including a tree with a mature height of 4m; and • trees achieving a minimum mature height of 5m being provided at minimum 4m spacings along the northern boundary between the pool and western boundary. (e) The northern wall / pool fence of the swimming pool is to comply with the Swimming Pools Act 1992 and AS 1926 and, in this regard, in not to exceed RL 50.30 and the outside face is to be painted and rendered to match the existing wall at No. 3 Solitary Street. The construction certificate plans are to be amended accordingly."
3. Condition (e) was considered by Mr Booth and Mr Vescio to be an appropriate response to the concerns expressed by Mr Lawer at the site inspection, and was therefore added to the agreed conditions of consent in the course of the hearing.
4. Finally, with respect to the objector's concerns about the terrace, Mr Booth and Mr Vescio agree that the terrace of Apartment 5 should remain and that deletion is not required. Mr Vescio opines that the terrace provides a high level of amenity to the future occupants. However, in the course of the hearing they agreed that an operational condition of consent should be imposed preventing lighting to the terrace after 10pm, to discourage use of the terrace for large groups after 10pm.
5. Similarly, Mr Booth and Mr Vescio agree that planter boxes are not required to restrict overlooking from the terrace, and that the balustrades to the balconies adjoining 3 Solitary Street need not be solid or angled. They opine that the privacy of 3 Solitary Street is adequately preserved and overlooking adequately prevented by the opaque glazing on the balustrades, the removal of lighting to the terrace after 10pm, the side setbacks of the proposed development, and the agreed conditions of consent restricting the accessible part of the balcony to Unit 5 (Apartment 5).

The breach of the height development standard

1. For the following reasons, I am satisfied that the requisite state of satisfaction required by cl 4.6(4) is met and that, therefore, there is power to grant development consent notwithstanding the breach of the height development standard.
2. In satisfaction of cl 4.6(4)(a)(ii), I accept the evidence of Mr Booth and Mr Vescio that the proposed development is consistent with the objectives of the height development standard and the zone. I also accept the matters set out in the request concerning consistency with those objectives. The development complements the predominantly two level height profile of adjoining residential buildings, maintains the amenity of the surrounding properties, provides additional height in an area that has access to amenities and is zoned for medium density, and provides for the housing needs of the community within a high quality design in a medium density residential environment.
3. I also accept that the request adequately establishes that compliance with the development standard is unreasonable or unnecessary. Firstly, the request establishes that it is unnecessary to comply with the height development standard in circumstances where the reason why it is so low is because of the OLS. As such, the fact that CASA has indicated that the proposal is acceptable in height means that there is no necessity to comply with the height development standard. Secondly, the request establishes that it is unnecessary to comply with the standard because the objectives of the standard are achieved notwithstanding the non-compliance.
4. Finally, I accept that the request establishes sufficient environmental planning grounds to justify the breach of the height development standard. I'm not satisfied that those grounds arise from the OLS, of itself. However, the request establishes that the breach of the height development standard is justified to achieve an appropriate medium density development, which is expressed in the proposed two storey plus basement urban form. I accept that the request establishes that, where there is a very low height development standard (5.4m) and where a different height development standard would be in place if it was not for the OLS, the departure from that development standard is justified to achieve a height that is consistent with the medium density zoning of the site. These matters, taken together, are sufficient environmental planning grounds to justify the departure from the standard.

Development consent should be granted

1. Having been satisfied that there is power to grant development consent notwithstanding the breach of the height development standard, the question then remains as to whether, on the merits of the application, development consent should be granted.
2. I accept the evidence of Mr Booth and Mr Vescio that the proposal provides a suitable design response for the sloping nature of the project site when viewed from Victoria St and in respect to the amenity of neighbouring properties. I accept their evidence that the 2 level presentation to the streetscape is consistent with the built typology of surrounding buildings within the immediate area, that the setbacks provided are sufficient, and that the proposal provides an appropriate level of density for the site.
3. I accept that the concerns of the objectors have been adequately addressed through the amended plans and the proposed conditions of development consent. The proposed development provides adequate separation from the adjoining development at 3 Solitary Street, and that separation, together with the opaque glazing of the balustrades, the additional balustrade to the balcony off Unit 5, and the painted and rendered treatment to the pool wall, provides adequate protection from overlooking. I accept that the pool is appropriately located and that overlooking from the pool will be prevented by the proposed condition of consent for a painted and rendered wall.
4. I therefore find that the development is an appropriate response to the site's topography, the applicable controls, and its location and urban context. In accordance with cl 30 of SEPP 65, I am also satisfied that adequate regard has been given to the ADG and the design quality principles. Given that the other planning controls of the CHDCP 2015 are met, there is no basis to refuse the development application and it is granted accordingly, subject to the conditions of consent as agreed between the parties.

Final orders

1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the demolition of existing structures and the construction of a 3-storey residential flat building with 7 apartments on the ground and first floors and 18 car parking spaces at the lower ground floor, at 117 Victoria Street, Coffs Harbour, subject to the conditions of consent at Annexure A. 3. The exhibits are returned, except for Exhibits B, C and 6.

Commissioner Gray Annexure A (81.9 KB, 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: 31 October 2018